|UFDC Home||myUFDC Home | Help|
This item has the following downloads:
WALKING AWAY FROM NUREMBERG:
JUST WAR AND THE DOCTRINE OF COMMAND
RESPONSIBILITY IN THE AMERICAN MILITARY PROFESSION
LAWRENCE P. ROCKWOOD
A DISSERTATION PRESENTED TO THE GRADUATE SCHOOL
OF THE UNIVERSITY OF FLORIDA IN PARTIAL FULFILLMENT
OF THE REQUIREMENTS FOR THE DEGREE OF
DOCTOR OF PHILOSOPHY
UNIVERSITY OF FLORIDA
At the University of Florida, special thanks go to Robert McMahon, Michael
Gannon, and Paul Magnarella who all were indispensable to this project. The chair of my
doctoral committee and academic adviser for almost three decades, Dr. McMahon, bore
the five years of my research and composition with patience and grace while guiding the
advancement of this dissertation through many last minute obstacles. Mike Gannon's
and Paul Magnarella's life's work inspired my interest in professional ethics and human
rights leading to this project. The history department's Betty Corwine, and later Joanne
Fort, provided much kindhearted assistance over the years. Additionally, I would like to
thank the many the Freedom of Information Act (FIOA) officers who made this project
possible, especially the archivists at the at the U.S. Army Military History Institute at the
U.S. Army War College in Carlisle Pennsylvania. Finally, I dedicate this dissertation to
the memory of my father, Lieutenant Colonel William P. Rockwood, U.S. Air Force,
graduate, Army Officer Candidate School, Class No. 1 (September 27, 1941).
TABLE OF CONTENTS
A C K N O W L E D G M EN T S ..................................................................................... vi
F IG U R E ...................................................................................................... v ii
AB STRA CT ..................................................... viii
IN TR O D U C TIO N ........................ .... ........................ ........ ..... ................
1 JUST WAR DOCTRINE AND GENERAL ORDER NO. 100 ..........................17
O rigins of G general O rders N o. 100............................................. .................... 18
A ugustinian Just W ar D octrine.................................... .......................... .. ...... 23
Just W ar Doctrine and Post-W estphalian Legalism ............................................ 32
Just War Criteria and General Order No. 100........................................... 40
Ju st C au se ...................................................... 4 1
C om petent A authority ........................................ ..................... ..... 42
C om parative Justice ......... ............................................... .............. 45
R eight Intention ................ ....... ...... ........... ...... ............ 49
Last Resort ................ ......... ....... .......... 51
Probability of Success........... ................... ......... .......... .... .... .......... 53
Proportionality .................... .................................... 54
D iscrim ination................................. ............................ ........ .. .. 56
The Legacy of General Orders No. 100............................ ....................... 57
General Orders No. 100 and International Humanitarian Law (IHL)...... 58
The A ndersonville Trial .................................... ..................................... 61
Conclusion ............................................ 67
2 THE DOCTRINAL DEVELOPMENT OF THE AMERICAN MILITARY
PROFESSION ............................................. .. ....................... 70
Constitutional Allegience and the American Military Profession........................ 71
The Prussification of the American Military Professionalism .......................... 73
Clauswitze contra Lieber (political realsim vs. political ethics) .............. 74
Emory Upton's Love Affair with Prussia .............................................. 79
Elihu Root and the Birth of Military Professionalism .............. ...................... 84
The Formalization and Specialization of American Military Doctrine .............. 90
The Field Service Regulations .............. ........................................... 91
R ules of L and W arfare.......................................................... ................. 95
The Military Professionalism Under the Tutelage of the Legal
Profession................... .. ..... .......... ................... 97
The Re-democratization of the American Military............................. 101
C onclu sion .... ............................................................................ 108
3 COMMAND RESPONSIBILITY AND THE MEANING OF NUREMBERG 10
Command Responsibility Before Nuremberg............................ 112
The O rigins of the N urem berg........................................................ ................. 114
The International Military Tribunal and the Nuremberg Principles ................. 122
The Yamashita Precedent ........................ ................. ...... 127
Trials under Control Council Law No. 10 ................................. .............. 130
The High Command Case .... ................................... 131
The Hostage Case ........................ ............ .. .............. 133
Competing Standards of Command Responsibility ....................................... 135
International Validation and Codification ............................... ............. 139
The O their N urem berg .................................... ............................... ......... 143
The 1957 Edition of Field Manual 27-10 ................................................... 149
Conclusion......... ....................................... ...................... 151
4 THE AMERICAN MILITARY ETHIC IN EARLY COLD WAR............. 154
Form al and Inform al N orm s: ..................................................... ................... 157
The Post-W ar Civil-M military Relationship............................................ 160
The Normal Theory of the American Military Professionalism ............ 163
The Rehabilitation of the Wehrmacht and the Re-Prussification
of the Am erican M military Profession...................................................... 168
Army Doctrine and the Vietnam War.................................................... 176
C on clu sion ........................................................................................... ..... ...... 182
5 COMMAND RESPONSIBILITY AND THE MY LAI MASSACRE.......... 183
My Lai, the Peers Commisssion, and American Military Justice....................... 189
Lieutenant Calley and the Defense of Superior Orders ........................ 191
Captain M edina's Responsibility .............. ...................................... 194
The Taylor Thesis ............................... ........................ 202
Yamashita v. M edina, Subjective Criteria ....................................... 209
The Legacy of M y Lai M assacre ............................... ............ .... ................. 213
Post My Lai Professional Reform, An Attempted Return to Just War... 213
Post-V ietnam R evisionism ............................. .................. 218
Conclusion ............ ............................ ............... 223
6 THE 1977 GENEVA PROTOCOL I AND THE POST-VIETNAM
MILITARY DOCTRINE............... ........................................ 225
U.S. Negotiations at the Diplomatic Conference in Geneva ............................ 227
North / South Debate, Just War Doctrine, and Amended Article 1........ 231
Command Responsibility and Protocol I......... .... ......... ............. 242
The U.S. Military Evaluation of Protocol I................................ ............ .. 244
U.S. Army War College Study of Protocols ................................... 246
Department of Defense Review of Protocol 1 ....................................... 248
A Neo-Clausewitzian Critique of International Humanitarian Law....... 254
Clausewitzian Realism as Formal American Military Doctrine......................... 258
Conclusion ............ ............................ ............... 265
7 C O N C L U SIO N : ....................... .................................................... .... .. 269
APPENDIX: CONTEMPORARY STANDARDS OF COMMAND
RESPONSIBILITY............................ ............... .. .............. 274
The ad hoc Crim inal Tribunals ...... ... .................................. ........ 276
The International Criminal Court (ICC) ........................... .............. 278
Command Responsibility and the Abu Ghraib Investigations.............. 282
REFEREN CES ......................... ......... .. .. ..... .. ............288
BIOGRAPHICAL SKETCH ...... ..... ....................... ........ .... ........... 314
1 FM 22-100, M military Leadership ........._. ... ....... ................... ..... .........6
Abstract of Dissertation Presented to the Graduate School
of the University of Florida in Partial Fulfillment of the
Requirements for the Degree of Doctor of Philosophy
WALKING AWAY FROM NUREMBERG:
JUST WAR AND THE DOCTRINE OF COMMAND
RESPONSIBILITY IN THE AMERICAN MILITARY PROFESSION
Lawrence P. Rockwood
Chairman: Robert J. McMahon
Major Department: History
On November 20, 1945, in his opening statement as the American Chief Counsel
for the prosecution at the International Military Tribunal (IMT) at Nuremberg, United
States Supreme Court Justice Robert H. Jackson addressed the issue of whether the
legacy of that tribunal would be simple "victor's justice" or the establishment of
principles of international reciprocity in holding individuals accountable for war crimes:
"We must never forget that the record on which we judge these defendants is the record
on which history will judge us tomorrow. To pass these defendants a poisoned chalice is
to put it to our lips as well."1 The official position of the United States vis-a-vis Justice
Jackson's apocalyptic challenge has been one of steady erosion from a precise affirmative
standard for holding individual commanders directly responsible for war crimes.
1 Quoted in Telford Taylor, The Anatomy of the Nuremberg Trial, (New York: Little Brown, 1992), 168.
Many of the principles of Nuremberg era trials have their origin in the U.S.
Civil War era U.S. General Order No. 100, also known as the Lieber Code, that
incorporated all the major principles of Augustinian just war doctrine. This project
examines the evolution of the concept of command responsibility as U.S. military
doctrine from the Lieber Code to the present. The development of military doctrine is
considered in the context of contested weltanschauung worldviewss) between those
who championed contrasting models of military professionalism.
Although the United States Army, after World War II, incorporated a rigorous
definition of command responsibility into its preeminent doctrinal manual on the law
of war, Field Manual 27-10, the United States failed to hold its own military
commanders responsible for dereliction in preventing grave breaches of international
humanitarian law during the course of the Vietnam War.2 Subsequently, the United
States has consistently refused to ratify international treaties and protocols that would
replace the passive standard of command responsibility that the United States has
enforced on its own military personnel with the affirmative standards inscribed in
other recent international human rights statutes and war crime tribunal charters.
Finally, this project will closely examine the relevance of the military doctrine of
command responsibility to the national decisions to oppose the ratification of such
2 U.S. Army Field Manual 27-10, Rules of Land Warfare, (Washington, DC: Government Printing Office,
July 1956). 178-179.
On loan from the U.S. Supreme Court for the purpose of negotiating the London
Charter establishing the International Military Tribunal (IMT) and later serving as the
tribunal's first lead prosecutor for the United States, Justice Robert Jackson immediately
understood that the trials he had arranged and the theory of his prosecution placed the
American military profession in a historical ethical dilemma. In a 1946 article, published
in what was then the professional journal of the U.S. Army, Jackson argued that the
standards of liability that the IMT was holding as binding on the officers of the former
Axis powers were, rather than novel initiatives, inherent in American military tradition
and doctrine. Jackson had a formidable task, as many American military officers were
concerned about precedents being established and the possibility that this precedent could
be used against American commanders in the future. Although the War Department had
both initiated the process and crafted the charges, Jackson realized it would be
insufficient to portray the charter as just a binding order initiated by a competent and
recognized authority. Doctrine usually assumes a longevity that exceeds the tenure of an
appointed or elected leadership. Jackson had to present the charter to the American
military profession as part of its own tradition. First he had to balance the norms of
military obedience to higher authority, especially civilian authority, with the concept that
certain orders are by their nature manifestly illegal and should not be executed. Second,
he had to address the reality that, although members of the military profession are by
definition the mangers of violence, they must abide by rules that recognized that the
means that can be utilized in war are not unlimited and that military commanders are
liable when the conduct of their subordinates exceed those limitations.
Rather than the old law journal debate over the issue of Justice Jackson's legal
realism, this dissertation is concerned with the relationship between American military
doctrine and the Nuremberg precedents over a half-century after Justice Jackson argued
his case for their interdependence. Conservative positivist commentators have pointed
to the novelty of the Nuremberg process and criticized the "tendency to equate war
crimes decisions, or Nuremberg precedents, with the law of war."2 Rather than refute the
legal positivist critique of Nuremberg, my purpose is to establish the Nuremberg
precedents, their antecedents, and progeny as American military doctrine.
This dissertation examines the development of the concept of command
responsibility as official military doctrine from the Civil War era US Army General
Order 100, the "Lieber Code" to contemporary U.S. military doctrine. JCS Pub 1, the
definitive delineator of official U.S. military terminology, defines doctrine as
"fundamental principles by which military forces or elements thereof guide their actions
in support of national objectives."3 Doctrine is distinct from law. While authoritative, a
violation of doctrine does not necessarily involve a violation of law. Although doctrine
often results in law and law often underpins doctrine, doctrine, unlike law, calls for
judgment in its application rather than an automated compliance. Unlike positive law
1 Justice Robert Jackson, "The Significance of Nuremberg to the Armed Forces" inMilitaryAffairs,
(Winter 1946) Vol. 10, 2-15.
2 William V. O'Brien, "The Law of War, Command Responsibility and Vietnam," Georgetown law
Review, LX (February, 1972): 606.
3 Joint Chiefs of Staff (JCS) Publication No. 1, Terms andAcronyms (Washington: Government Printing
Office, 2000), s.v. "doctrine."
based simply on legal jurisdiction, doctrine is based upon a professional consensus, even
though the foundation of that consensus is based on an internal institutional validation
that is hierarchical and relatively narrow. Unlike law, doctrine is openly historicized in
that it "captures the lessons of past wars, reflects the nature of war and conflict in its own
time, and anticipates the intellectual and technological developments that will bring
victory now and in the future," making it a test of professional rather than legal
Just as doctrine is distinct from law, doctrine is also distinct from drill. In a 1966
official doctrinal manual, Virgil Ney drew a distinction between drill manuals and
modern military doctrine. He considered early manuals as "doctrine in infancy." One
example of such proto-doctrine was the Regulations or Blue Book that Frederick William
von Steuben developed to drill the Continental Army at Valley Forge in marching,
weapons fire, and open field battle maneuver. Doctrine proper involves strategic and
operational concerns that are for more comprehensive than mere drill.5 Additionally,
doctrine is distinct from unofficial literature, no matter how influential, in that doctrine is
usually officially published and may also carry an official imprimatur similar to that
found in Catholic theological works signifying doctrinal correctness.
4 "The Army's doctrine lies at the heart of its professional competence." See Department of the Army, Field
Manual 100-5, Operations (Washington: Headquarters, Department of the Army, 1990), 3. This manual
described itself as the U.S. Army's "keystone warfighting doctrine" as it "links Army roles and missions to
the National Military Strategy" and describes how commanders are "to think about the conduct of
campaigns, major operations, battles, engagements, and operations other than war."
5 Virgil Ney, The Evolution of the United States Army Field Manual: Valley Forge to Vietnam (Fort
Belvior, VA: Combat Operations Research Group, 1966). For unofficial works claiming that drill manuals
should be considered as capstone doctrine, see William O. Odom, After the Trenches: The Transformation
of U.S. Army Doctrine, 1918-1939 (College Station, TX: Texas A&M University Press, 1999), 3, and
Walter Edward Kretchik, "Peering Through The Mist: Doctrine as a Guide for U.S. Army Operations,
1775-2000" (Ph.D. diss., University of Kansas, 2001), 1-3.
One benefit of a doctrinal vis-a-vis legal approach to command responsibility is
that it avoids the perennial debate between natural law and positive law theorists.
Following the views of Hugo Grotius (1583-1645) and the prominent late medieval
theologian, Saint Thomas Aquinas, natural law holds that there is an inescapable
connection between law and morality. John Austin, legal positivism's leading historical
proponent, countered such natural law theorists by drawing a sharp distinction between
law and morality based on (1) the command doctrine, that a law must constitute a threat
of sanction, and (2) the doctrine of absolute sovereignty, that a law must be issued from a
position of superiority.6 Doctrine predates this conflict. Specifically, as an early just war
concept, the specific doctrine of military necessity, underpinning command
responsibility, predates the natural versus positive law argument and applies a normative
criterion directly to the experience of war without any need for any philosophical
discussion into the nature of law.
Like law, doctrine is hierarchal. In fact, no two sets of doctrinal publications can
be equal in any given circumstance or contingency. This study is only concerned with
doctrine that established a foundation for the general operation of an army in which
changes in just war doctrine over time would necessitate modifications in subsidiary
doctrines and even the doctrines of other military services. Distinctions between
doctrinal publications arose out of doctrinal developments starting with the promulgation
of (1) the Field Service Regulations early in the twentieth century, (2) the Army Field
Manuals developed during the Second World War and utilized during the Cold War, and
6 Stanley L. Paulson, Classical Legal Positivism at Nuremberg," Philosophy and Public. I ,no 4, 2
(Winter, 1975): 133-135. See also Jeffrie G. Murphy and Jules L. Coleman, "The Nature of Law," in
Philosophy of Law: An Introduction to Jurisprudence, revised ed. (Boulder: Westview Press, 1990), 6-33.
(3) the current interservice or "joint" service regulation systems now in the process of
supplementing and replacing the separate doctrinal publication systems of separate
services. Current official doctrine places such doctrine into two major groups:
Capstone Doctrine: The highest category of doctrine publications
in the "hierarchy of publications" that link doctrine to national strategy
and the guidelines of other government agencies to include other members
of international alliances and coalitions.
Keystone Doctrine: Doctrinal publications that provides the
foundation for a series of doctrine publications in the hierarchy of
The focus of this study is on Army doctrine and publications at the expense of the
Navy, and later the Air Force, derives from the Army's traditional role as the major
source of both capstone and keystone doctrine. Between the promulgation of U.S. Army
General Orders No. 100 in the Civil War to the belated implementation of the
Goldwater-Nichols Department of Defense Reorganization Act of 1986, a process not yet
complete, the War Department and, subsequently, the Department of the Army was the
proponent agency for national war fighting doctrine in general and the laws of war in
Doctrine is also like law in that it posits a formal norm. Besides formal legal
standards, regulations, and military orders, the 1990 edition of U.S. Army Field Manual
22-100, Military Leadership, includes traditional organizational values such as doctrine
as formal norms. Informal norms include actual operating organizational values,
institutional pressures, and personal values. Unlike law, doctrinal norms do not
necessarily imply uniformity or constancy. Despite its formal hierarchical structure, the
7 Joint Publication 1-02, Department of Defense Dictionary of Military and Associated Terms (Washington:
Government Printing Office, 12 April 2001, as amended 7 May 2002), 62, 82.
human world of military leadership and subordination seldom provides for the
uncontested development of formal norms. The process of the development of doctrine
often is a complicated balancing act between current authoritative policy and past
tradition. Norms can be arranged along a continuum from rigidly formal norms such as
legal standard (laws, orders, and regulations), semi-formal norms such as basic national
values and traditional organizational values, to informal norms such as actual operating
organizational values, institutional pressures, and personal values. Formal norms should
always trump less formal norms. FM22-100 defines a "true ethical dilemma" as
existing "when two or more deeply held values collide."8
IT ETHICAL DECISION-ALUKI PROCESS
Figure 1, From FM 22-100, Military Leadership
8 See Chapter 4 in FM 22-100, Military Leadership, (Washington: Government Printing
Office, 1990). The draft 2000 version of FM 22-100 dropped the concept of an ethical
dilemma as a result of the adoption of Aristotelian virtue ethics as a base modal of ethics.
Conflicts between formal norms and informal norms impact not only on the
operational effectiveness of a command, but also on the moral and ethical integrity of its
actions. It will be argued that the ethics associated with traditional just war doctrine are
formal military norms.
Chapter 1 examines the establishment of the principle that there is an affirmative
official duty to use force or coercion to assist others as predicated and conditioned by the
principle of necessity formally in both capstone and keystone doctrine. This principle of
military necessity was established as a formal norm in the military during the Civil War
in U.S. Army General Order 100, the "Lieber Code." In many respects, the "Lieber
Code" and other nineteenth century writings of Dr. Francis Lieber are a reiteration of the
traditional concept ofjustum bellum or just war that originated at end of the fifth century.
The work of Lieber is representative of central tenets of traditional just war theory and
provides a modern foundation of the concept of military necessity and the related concept
of command responsibility for humanitarian conduct during armed conflict. Just over
two years after President Lincoln issued the "Lieber Code," the affirmative mandate
placed on commanders to ensure the minimization of human suffering was enforced by a
U.S. Army military tribunal during the trial of Confederate Captain Henry Wirz, the
commandant of Andersonville Prison, for his failure to affirmatively address the
conditions of Union prisoners during the Civil War.
To make the pejorative charges that certain historical developments are regressive
relapses to a primitive just war doctrine has been a favorite tactic of conservative critics
who have opposed humanitarian initiatives from the Nuremberg Principles to the 1977
Geneva Protocols. Such charges are founded on a lack of knowledge of the core concepts
incorporated in both early just war doctrine and the "Lieber Code." Some scholars in
authoritative positions of doctrine development have even attempted to portray the
central just war principle of discrimination, the distinctive treatment of noncombatants, as
The present defense of the just war concepts against contemporary charges of
obsolesce will be made on the basis of doctrine rather than simplistic interpretations of
positive law. U.S. Army General Order No. 100 was just as much a foundation of
doctrine as it was of law. As a representation of a major change in national strategy
affecting the conduct of Union forces, it provides the first example of a national
operational capstone doctrine. As the initial authoritative basis for a series of doctrinal
publications on the laws of war that was binding on all branches of the service, it was the
first major historical example of keystone doctrine.
Chapter 2 discusses the developments of U.S. military doctrine between the Civil
War and World War II. The influence of foreign models of military professionalism will
be examined as a facilitator and inhibitor of the development of uniquely American
doctrine. With the development of a formal publication and training system, doctrine
was increasingly specialized into distinct fields of capstone and keystone disciplines. As
pressures increased to democratize the American military institution and to create a mass
9 See David E. Graham, "The 1974 Diplomatic Conference on the Law of War: A Victory for Political
Causes and a Return to the "Just War" Concept of the Eleventh Century" in Washington and Lee Law
Review, xxxii, (1975), 38, 63, and, William Hays Parks. "Air War and the Law of War." Air Force Law
Review. (1990): 1:50. Parks finds the just war principle of discrimination He even went so far as to claim
that it was the "fundamental failure of the law of war to acknowledge that the traditional distinction
between the combatant and noncombatant was obsolete, and had been for the century preceding World War
army, military doctrine became imbued with societal values more facilitative of the
extension of humanitarian norms in warfare.
Chapter 3 outlines the historical development of the concept of command
responsibility not just as law, but also as military doctrine. The Department of Defense
Dictionary ofMilitary and Associated Terms provides three basic official definitions of
1. The authority that a commander in the Armed Forces lawfully
exercises over subordinates by virtue of rank and assignment. Command
includes the authority and responsibility for effectively using available
resources and for the planning the employment of, organizing, directing,
coordinating, and controlling military forces for the accomplishment as
assigned missions. It also includes responsibility for the health, welfare,
morale, and discipline of assigned personnel.
2. An order given by a commander, that is, the will of the
commander expressed for the purpose of bringing about a particular
3. A unit or units, an organization, or an area under the command
of one individual.10
The nuanced, overlapping meanings of command, as an individual noun, a verb,
or a collective noun, are often not appreciated by those outside the military and even
those within the profession are not aware that command can refer simultaneously to more
than just one of these definitions at the same time.
Although the International Military Tribunal in Nuremberg is the best-known
historical event in the establishment of individual responsibility for war crimes and
crimes against humanity, it had earlier precedents. One involved the 1940 change to the
War Department Field Manual 27-10, The Rules ofLand Warfare. This document
10 JP 1-02, 82.
doctrinally negated the defense of superior orders for war crimes. Another precedence
event was the case of General Tomayuki Yamashita, who was put on trial, found guilty,
and executed for failing in his command responsibility to prevent or punish the killing of
civilians and prisoners of war during the Japanese defense against the American
reconquest of the Philippines in 1945. The Yamashita conviction is the most striking
example of the incorporation of just war doctrine into a Nuremberg era affirmative
The U.S. Supreme Court proclaimed this affirmative principle of command
responsibility when it upheld Yamashita's conviction and allowed him to be executed.
General Douglas MacArthur, the Commanding General of the U.S. Army Forces in the
Pacific, issued a statement confirming Yamashita's sentence in which he charged the
Japanese general with violating the very definition of his profession: "The soldier, be he
friend or foe, is charged with the protection of the weak and unarmed. It is his very
essence and reason for his being."12 The United States Army incorporated a close
approximation of this affirmative standard into its post war doctrinal manual on the Law
ofLand Warfare, Field Manual 27-10.13 The major standards of command liability
associated with the major war crimes trials during the Nuremberg period will be
compared to the principle of command responsibility as incorporated into 1957 edition
1 War Department. Field Manual 27-10, The Rules of Land Warfare. (Washington, Government Printing
12 Action of the Confirming Authority, General Headquarters, U.S. Army Forces, Pacific, in the case of
General Tomoyuki Yamashita, Imperial Japanese Army, February 7, 1946.
13 U.S. Army Field Manual 27-10, The Law of Land Warfare, (Washington D.C.: Department of the Army,
July 1956). 178-179.
FM 27-10, which still represents current doctrine. The relevant passage from FM 27-10
holds a commander liable:
if he has actual knowledge, or should have had knowledge, through
reports received by him or through other means, that troops or other
persons subject to his control are about to commit or have committed a
war crime and he fails to take the necessary and reasonable steps to insure
compliance with the law of war or to punish violators thereof. 14
Chapter 4 discusses in detail the developments concerning the doctrine of
command responsibility during the period of the Cold War in context of ideological
changes within the American military profession. After the Nuremberg trials
documented the complicity of the German military establishment in the rise of Hitler and
the Holocaust, the founders of the new West German Army, the Bundeswehr, rejected the
much of the Prussian/ Wehrmacht tradition of military professionalism. Just as it was
being thoroughly rejected in Europe, a rehabilitation of the Prussian/ German military
tradition was underway in the United States. This rehabilitation first took place outside
formal doctrinal publications with the appearance in 1957 of Samuel P. Huntington's
seminal book, The Soldier and the State: The Theory and Politics Of Civil-Military
Eliot A. Cohen, Professor of Strategic Studies at the Paul H. Nitze School of
Advanced International Studies, coined the term "normal theory" to describe a model of
civil-military relations that rests on a "conception of professionalism" put forward by
Huntington that was reinforced by the impact of the Vietnam War on the American
military. Written in direct response to criticism of the aristocratic pretensions of some
American military leaders in the wake of the Truman-MacArthur controversy,
14 FM 27-10, 178-179.
Huntington argued for a functional military aristocracy based on a historical model of
development of the American military profession that emphasized the discontinuity
between American civil society and an increasingly professional American military
culture. Rather than a continuity based on shared democratic values, Huntington argued,
in his chapter, "The Military Mind: Conservative Realism of the Professional Military
Ethic," that professional officers maintain a distinctive and persistent weltenschauung
(worldview) that molds and influences their contemporaneous attitudes and values. After
maintaining that the seeds of a professional military ethic were more resilient in the
antebellum Southern culture than in the North, Huntington placed the true cultural
reservoir of American military professionalism in the military ethic of nineteenth-century
While it would be over twenty-five years before certain aspects of Huntington's
work would be incorporated in formal military doctrine in the so-called Weinberger
Doctrine, the neo-Clausewitzian realism, espoused in Soldier and the State, would have
hegemonic influence on the American military profession during the Cold War. The
major institutional debates affecting its tenets would include the doctrinal initiatives
regarding credible expansion of the Nuremberg doctrine of command responsibility into
an international enforcement mechanism that would be universally enforceable.
15 Eliot A. Cohen, "The Unequal Dialogue" in Soldiers and Civilians: The Civil-Military Gap and
American National Security, ed. Peter D. Feaver and Richard H. Kohn (Cambridge: MIT Press, 2001), 433.
Cohen is a critic of Huntington's model of civil-military relations and argues that actual control of the
military by civilian authority facilitates rather than impedes military effectiveness. Huntington's seminal
Soldier and the State (Cambridge, Ma.: Harvard University Press, 1957) is in its twelfth printing.
Huntington also reiterated his basic model of military professionalism in "The Soldier and the State in the
1970's found in The ( 1 i1,, i,, World of the American Military, edited by Franklin D. Margiotta
(Boulder: Westview, 1978), "Democracy And Armed Forces: Reforming Civil-Military Relations,"
Current. (February 1, 1996) pp. 15-35, "Armed Forces and Democracy, Reforming Civil-Military
Relations," Journal ofDemocracy (October 1995), and his response to Richard H. Kohn's article in The
National Interest in "Exchange on Civil-Military Relations," The National Interest, No. 36 (Summer 1994),
Chapter 5 focuses on the American record of holding its own personnel to the
level of command responsibility associated with the Nuremberg precedents. Particularly,
the landmark case of Captain Ernest Medina, the commander of the principal company
responsible for the My Lai Massacre of March 16, 1968, in Vietnam, will be addressed in
the context of the standard of command responsibility associated with his trial. Medina's
case has come to represent one of two principal standards used today to measure issues of
command responsibility. The judge in Medina's trial instructed the jury that a
"commander-subordinate relationship alone will not allow an inference of knowledge"
and that they must establish that Captain Medina possessed actual knowledge that his
subordinates were committing human rights violations.16 That standard contrasts both
with the "Yamashita standard" established in post-WW II war crimes tribunals and the
standards on command responsibility found in Additional Protocol I, the Statute of the
International Tribunal for Rwanda, the Statute of the International Tribunal for the
Former Yugoslavia, and the Rome Statute for the International Criminal Court.
The failure of America to hold its own citizens to the same standards it held out to
its defeated enemies was unquestionably demonstrated following the American military's
greatest modern professional catastrophe: the My Lai massacre and its subsequent cover-
up. After its revelation in 1970, Chief of Staff of the Army General William
Westmoreland responded with a series of initiatives: (1) the appointment of Lieutenant
General William R. Peers to head the official Army inquiry into the My Lai Massacre, in
which "every command level" in the affected division was implicated in covering up the
massacre; (2) directing the Army War College to undertake a study of the contemporary
16 United States v. Captain Medina, C.M. 427162 (A.C.M.R. 1971).
state of American military professionalism to address the institutional failures brought to
light by the U.S. Army's problematic conduct of the war; and (3) ordering the
establishment of the U.S. Army Vietnam War Crimes Working Group.
Immediately following these negative self assessments carried out in the wake of
the My Lai Massacre, the United States participated in diplomatic conferences lasting
from 1974 to 1977 concerning the expansion of humanitarian protections afforded non-
combatants in international armed conflict. Chapter 6 addresses the result of this process:
the Protocol Additional to the Geneva Conventions of 12 August 1949 relating to the
Protection of Victims of Armed Conflicts (Protocol I), 8 June 1977. In the direct
aftermath of the lessons learned from the disaster at My Lai, the United States took the
lead in successfully negotiating the inclusion of an affirmative definition of command
responsibility in Article 86 of Protocol I. The American delegation at these conferences
comprised the author of the current edition of FM 27-10 and former head of the U.S.
Army Laws of War Program, Judge Richard Baxter, and his successor, Waldemar A.
Solf Protocol I provided an extension of the Nuremberg precedent regarding the general
principle of international humanitarian law concerning the treatment of non-combatants.
However, in spite of the Joint Chiefs of Staff (JCS) giving Protocol I its tentative
approval at the time of its signing in 1977 and an Army War College study supporting
ratification in 1978, the Reagan administration and subsequent administrations have
refused to submit it to the United States Senate for ratification.
With the election of Reagan, U.S. policy shifted from supporting an increased
standard of command responsibility to policies undermining attempts to establish a more
rigorous standard of command responsibility. Official working groups within both the
Department of the Army and the Department of Defense were arranged to
document a shift in the position of military professionals in reference to the ratification of
the 1977 Protocols. The particular change in the official military position in regard to the
1977 Protocol and the American initiated standard of command responsibility contained
within it can only be understood in the context of the general consolidation of a more
conservative weltanschauung within the American military profession in the 1980s.
Chapter 6 also addresses the antipathy of the American military profession toward
humanitarian operations during the 1990s and its failure to establish a consistent doctrinal
base to guide such operations. Since humanitarian military operations possess the highest
level of ideological concurrence with traditional just war doctrine, they are the type of
military operation that is least in harmony with neo-Clausewitzian realism. The
conflicting models of Low Intensity Conflicts (LICs), Operations Other Than War
(OOTW) and Peace Operations created a doctrinal chaos that, together with a
professional animus toward such operations, led to severely compromised humanitarian
deployments to Somalia, Haiti, the Balkans, and the American failure to intervene in the
Rwandan Genocide. The promulgation of the Weinberger Doctrine, actually authored by
General Colin Luther Powell, symbolized the ascendancy of conservative realism within
the American military profession. However, even when doctrinal transformations have
strong political backing, they are seldom all encompassing or complete. Doctrine, like
law, possesses an institutional memory that sometimes blunts political necessity. The
attitudes of the contemporary American military professionals are relevant to
understanding the record of American official indifference to noncombatant humanitarian
concerns in non-traditional operations. The incongruity of these contemporary American
positions regarding the mandates of humanitarian law cannot be examined outside of the
institutional context of developments and changes in organizational core values over
The issue of the non-ratification of Protocol I remains of critical contemporary
interest as it is directly related to the issues underpinning the Pentagon's current
opposition to the 1998 Rome Treaty establishing a permanent International Criminal
Court (ICC). While the United States allowed the incorporation of standards of
command responsibility compatible with Protocol I in Article 6 of the Statute of the
International Tribunal for Rwanda, and in Article 7 of the Statute of the International
Tribunal for the Former Yugoslavia (a tribunal over which a U.S. citizen presides), it
continues to actively oppose the establishment of a permanent and independent tribunal
that could impose such a standard on American citizens.
Unlike most other works concerned with the geneses of American foreign policies, this
study focuses on the leading historical actor in establishing and enforcing humanitarian
norms in armed conflict: the American military profession.
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
Instructionsfor the Government of the Armies of the United States in the Field -- known
officially as General Orders 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 Orders 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
1 Instructions for the Government ofArmies of the United States in the Field (1863), originally published as
General Orders No. 100, War Department, Adjutants General's Office, 24 April 1863, cited hereafter as
General Orders No. 100. Quote taken from the title of World Court Justice Richard R. Baxter's article on
the origins of this document in The International Review of the Red Cross (April, 1963), no. 25, 171-189
and (May, 1963), no. 26, 235-250.
2 See Telford Taylor's forward to Leon Friedman's ed. The Law of War: A Documentary History (New
York: Random House, 1972), xvii xviii.
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 it is also the historical
reference point for a model of international relations centered on the early modern
European shibboleths of anti-interventionism and non-interference 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, a pre-modem and less Eurocentric philosophy of warfare
that (1) viewed war as an essentially moral undertaking and (2) that placed affirmative
humanitarian obligations on the conduct of a specialized group of individuals, the
Origins of General Orders 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 pre-modern 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 was lying close to death from wounds he receive during the
final allied final 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 fighting the Ottoman Army was
3 The definitive biography of Francis Lieber remains, although somewhat dated, Frank Freidel's Francis
Lieber (Baton Rouge: Louisiana State University Press, 1977). Substantial biographical information is also
available in John Catalano's Francis Lieber, Hermeneutics and Practical Reason (Lanham, University
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. Immigrating to the United
States in 1827, he became the Chair of History and Political Economy at South Carolina
College, later relocating to Columbia College in New York because of his antipathy to
slavery in 1857. 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 Fredrich
Schleirmacher 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 authorss. Lieber's political and legal
hermeneutics resulted in a "practical" ethic that contrasts sharply with the extremes of
both political realism -- positing an ethical aporia that holds actions of a state, either
foreign or domestic, as existing independent of any ethical or considerations -- and
Press of America, 2000), Richard Shelly Hartigan's Lieber's Code and the Law of War (Chicago: Precedent,
4 In 1821, Lieber's party of volunteers were not only refused the right to fight the Turks, they were robbed
and denied sustenance before escaping their Greek allies turned captors. See Baxter, The International
Review of the Red Cross (April 1963), n. 25, 172.
legalism, dismissing the political attributes and implications of law.5 Lieber was a life-
long critic of the conservative regime in Prussia and was a life-long apologist for a
revolutionary regime he adopted for his own, the United States. Lieber's political
principles developed, to a large extent, in opposition to Aristotelian principles of John C.
Calhoun, the intellectual father of the Confederacy. In reply to the Calhoun's
conservative theory of 'concurrent democracy,' Lieber developed the theory of
'institutional liberty' to explain the superiority of the American conception of nation to
that of extreme revolutionary states such as the France, that he had fought against, or
reactionary nation-states such as Prussia, that he fought for and then rejected.6
Reminiscent of Thomas Paine's role during the Revolutionary War, Lieber became the
theoretic apologist of the Union cause during the Civil War, even initiating the discussion
that would result in the revolutionary amendments to the Constitution adopted at the end
of the war.
By 1863, the Lincoln administration realized the Rules and Articles of War, then
in use, were not appropriate for a conflict with an enemy whose sovereignty it refused to
5 Francis Lieber, Manual of Political Ethics (Philadelphia: J. B. Lippincott & Co., 1838-39), reprinted
1876. Along with his Political Ethics, which served as a basic text for American law students in the until
the end of the nineteenth century, Lieber's political and legal philosophy also found in On Civil Liberty and
Self Government, 3rd ed. (Philadelphia: J. B. Lippincott & Co., 1877), Legal and Political Hermeneutics;
or, Principles of Interpretation and Construction in Law and Politics 3rd ed., ed. William G. Hammond
(St. Louis: F/H Thomas and Co., 1880). For a discussion of the relationship between Lieber's philosophical
hermeneutics and his political ethics, see Catalano, Francis Lieber, Hermeneutics and Practical Reason.
For a definition of ethical aporia, see note 1. Judith Shkar defined legalism as "the ethical attitude that
holds moral conduct to be a matter of rule followings, and the moral relationship to consist of duties and
rights determined by rules. See Legalism: Laws, Morals, and Political Trials (Cambridge: Harvard
University Press, 1964), I.
6 Lieber, On Civil Liberty, 270-346. While Calhoun's 'concurrent democracy' stressed the balance of power
between minorities and majorities, Lieber's 'institutional democracy' emphasized the balance between
individual liberty and social / institutional responsibilities.
7 Francis Lieber, Amendments to the Constitution, Submitted to the Consideration of the American People
(New York: Loyal Publication Society, 1865).
recognize. As the eighteenth-century Westphalian system left the responsibility for the
implementation of humanitarian concerns, such as the treatment of enemy prisoners, to be
worked out between theoretically equal sovereign nation states, the threat that the
Confederacy would exploit humanitarian practices under the custom and usages of war,
such as granting prisoner of war status, as a defacto recognition of sovereignty was
To resolve this conflict, Lincoln turned to Lieber to draft a "set of rules and
definitions providing for most issues occurring under the Law and usages of War."8 The
result was General Orders No. 100.9 As it formed the basis for similar codes in England,
France, and even Prussia, it is usually viewed primarily as a legal instrument. The Hague
Conferences of 1899 and 1907 incorporated the code's general provisions. However, it
would be a grave mistake to view General Order No. 100 as only of legal significance.
Like the Emancipation Proclamation a year before, it was a military order from a civilian
Commander-in-Chief to military commanders conducting current military operations.
Since the code remained in effect until it as superseded in 1917 by War Department
Document No. 467, Rules ofLand Warfare, which was greatly influenced by the original,
it should also be considered as a foundational document for the development of American
8 Letter, Francis Lieber to Henry W. Halleck (Nov. 13,1862). The Lieber Halleck correspondence found
in the Lieber Papers at the Huntington Library, San Marino, California was reprinted in Richard Shelly
Hartigan's Lieber's Code and the Laws of Law (Chicago: Precedent, 1983), 79-84.
9 See note 1.
10 War Department Document No. 467, Rules of Land Warfare, (Washington: Office of the Chief of Staff,
1917). Richard R. Baxter argued that the this document "preserved much of Lieber's language." See
Baxter, The International Review of the Red Cross, (May, 1963), n. 26, 249. This document was then
superseded Department of Army, Field Manual 27-1, Rules of Land Warfare (Washington, U.S.
Government Printing Office, 1940) then to be replaced by the present edition of the manual of which
Baxter himself was the primary author. See note 22.
As the first officially promulgated doctrine that addressed the overall conduct of
tactical and strategic operations "rather than specialized functions such as simple drill,"
General Order No. 100 constituted the U.S. military's first capstone doctrine.11 Rather
than being concerned with how to deploy tens of thousands of soldiers to march across
open fields in increasingly costly battles, Lieber was concerned with why a state deploys
soldiers in the first place. Next to Lieber, the most critical figure in the code's genesis
was the General-in-Chief of the Union Armies, Henry Wager Halleck, who was
responsible both for selecting Lieber and for heading the military commission tasked with
reviewing and approving the code. Hallack was not only the author of the most
contemporary of the privately published tactical drill manuals utilized during the war, he
was also the author of a major treatise on the laws of war, a work strongly influenced by
Lieber's earlier writings. 12 Lieber's close collaboration with General Halleck testifies to
General Order No. 100 's relevance to the operational art of warfare, such as it existed
during the Civil War.
On June 24, 1863, Confederate Secretary of War, James A. Seddon, wrote a letter
to Washington rejecting General Order No. 100. Seddon correctly detected the
revolutionary tone of Lieber's code, not only in regard to slavery, but Lieber's central
concepts of military necessity and the right of intervention in the affairs of another
sovereign state -- or (in Seddon's case) states claiming sovereignty. Seddon attacked the
11 For a discussion of foundational or "keystone" doctrine, see Introduction, n. 4.
12 See H.W. Henry Wagner Halleck, Elements ofMilitary Art And Science: or Course ofInstruction in
Strategy, Fortification, Tactics of Battles, ect., Embracing Actions of Staff Infantry, Cavalry, Artillery, and
Engineers adjusted to the use of Volunteers and Militia, 3d edition (New York: D. Appleton and Company,
1862 and International Law; or, Rules i .. ~,ilii the Intercourse of States in Peace and War (New York:
D. von Nostrand, 1861).
code as an "assertion of dogmas" that were oppositional to the very foundational
premises of Confederate authority.13
Contrary to sequentialist logic, the justification for major wars changes during
their course, especially when their course is exceptionally longer and bloodier than
expected. General Order No. 100 represented the shift in Union war objectives from
mere statist concern with the preservation of the Union to a revolutionary war of
emancipation. To establish a precedence to allow humanitarian protocols without the
statist criteria that could be used in support of Confederate foreign policy objectives,
Lieber was indeed guilty of resorting to the non-state centered concepts that were
considered by Seddon as pre-modern. However, just as "war antedates the state," as
noted by historian John Keegan,14 efforts to establish normative codes for humanitarian
concerns also antedate the state, at least the modern post-Westphalian state. The articles
of General Order No. 100 follow with remarkable consistency the central pre-modern
principles of Augustinian just war doctrine.
Augustinian Just War Doctrine
The principle that there is an affirmative official duty to use force or coercion to
assist others as predicated and conditioned by the principle of necessity (italics mine)
was laid down by the end of the fifth century as the concept ofjustum bellum or just
war.15 The initial western institutional base for just war doctrine was as a moral teaching
13 See Letter from James A. Seddon, Confederate War Secretary, Richmond, to Robert Ould, Agent of
Exchange, denouncing the: General Orders, no. 100, 24 June, 1863. Reprinted in Hartigan, Lieber's Code,
14 Keegan, A History of Warfare, 3.
15 Augustine to Boniface, Letter 189 (6). See Except for the City of God, all citations from the writings of
Augustine are flom. iin, 'lr,... Political ; i,,,o-. eds. E.M. Atkins and R.J. Dodaro (Cambridge:
Cambridge University Press, 2001).
of the leading theologians of the Roman Catholic Church. This sponsorship by a
recognized supra-national authority during the period of the doctrine's greatest influence,
gave just war doctrine a universal moral character. Later natural law theory, developing
from just war tradition, would share this attribute of universality. However, because just
war doctrine predates natural law theory and later legalist paradigms to include the
Westphalian concept of the 'law of nations' and the 'laws of war,' it remains conceptually
distinct from the perennial debate between positive law and natural law theorists over the
continuity or discontinuity between law and morality.
Just war finds its classical foundation in the distinction between the usually
interchangeable Latin words lex (law) andjus (justice). Marcus Tullius Cicero (106-43
bce) -- the great civic philosopher of republican Rome -- in his infamous maxim, silent
enim leges inters arma, argued that law is silenced in war in spite of his continuing to
address wars in terms of being either just or unjust. 16 Saint Augustine of Hippo (354-
430), the pre-eminent theologian of western Christianity's first millennium, chose
necessity rather than natural law as the moral foundation for any governmental use of
force. The problem for Augustine in drafting the central principles of traditional just war
doctrine at the end of the fifth century was defining an ethical role for Christian officials
in an empire now ruled by Christian, specifically Catholic, emperors. As the political
triumph of Christianity had not brought about a change in man's basic nature, this
Christian empire, like its pagan predecessor, required the use of force, or the threat
thereof, to maintain itself. Augustine 's conundrum (italics mine) consisted of the fact
16Cicero Pro Milone 4, 11. Although, following the Roman practice of bellum Romanum or unlimited war,
Cicero placed no constraints of the conduct of war, he distinguished a just war from a unjust war as one
waged for the sole purpose of repelling or punishing aggression. See De officiis 1, 11.
that there was no practical alternative to the requirement for individual Christians to serve
in positions of coercive authority. Although Augustine denied the self-defense argument
for individuals, he argued for an affirmative obligation to defend others that superseded
the pacifism associated with the early Church. 17
One of the Army's leading experts on just war doctrine defined it as the mean
between the two extremes of absolute pacifism and political realism.18 The real
demarcation between these categorical positions lies not in a disagreement over the
nature of war, but the nature of peace. While just war doctrine is effectively exemplified
by the maxim of 'no peace without justice,' political realism favors the peace even at
expense of justice. Pacifism, on the other hand, denies any such opposition between
peace and justice and posits that individuals, by avoiding the passive benefits of injustice,
can work for justice as a means to gain peace.19 Additionally, the pacifist sees war as the
ultimate expression of injustice, while -- for the political realist -- all claims of justice
must defer to the interests of a sovereign state, usually his own. Just war answers
pacifism's categorical rejection of force by defending the use of force on the bases of the
17 For a general overview of St. Augustine and just war doctrine, see R.A. Markus, "Saint Augustine's
Views on the Just War" in The Church and War, ed. W.J. Shields (Oxford: Published for the Ecclesiastical
Society by B. Blackwell, 1983), 1-13, Paul Ramsey, "The Just War According to St. Augustine" in Just
War Theory, ed. Jean Bethke Elshtain (New York: New York University Press, 1992), 8-22 and Simon
Chesterman, Just War or Just Peace? (Oxford: Oxford University Press, 2001), n 13, 9.
18Class given by Colonel Glenn Weidner, U.S. Army, the last Commandant of the U.S. Army School of the
Americas during Human Rights Week in January 1999 and February 2000. Weidner was formerly a
student of preeminent just war theoretician, J. Bryan Hehir S.J. while a Fellow attending Harvard's Center
for International Affairs.
19 While leading pacifist theorists --such as Henry David Thoreau, Mahatma Mohandas Gandhi, and Martin
Luther King Jr., argued that pacifism required an affirmative requirement for an individual to renounce and
forswear the benefits received from unjust state action or commerce with unjust states, such ethical
consistency is less stressed among many contemporaries who claim to be pacifists.
categorical value of human life, i.e. the victim's.20 Augustine separates just war doctrine
from both political realism and pacifism by positing that the desire for peace does not in
itself entail any virtue:
Just as every single human being desires peace in the same way they
desire happiness. The love of peace, therefore, is not a virtue. When
those who are leading their nations sing the praise of peace they are
sincere. They seek war to achieve their peace. Even violent criminals
demand peace, if only for themselves. They do not love war; they aspire
to an unjust peace.21
Although not a systematic thinker in any modern sense, his positions on the
proper conduct of those holding state authority is directly related to the basic
philosophical premises of his theology: (1) a selfless love encompassing the altruistic
obligation to assist others for their own sake and (2) a human realism based upon what
Hannah Arendt -- one of his most famous twentieth century interpreters -- calls a
"definite and obligatory equality among all people." 22 Just as the desire for peace
entailed no positive value in itself, love according to Augustine could either be for good
or evil and that is why actions responsibly undertaken for the welfare of others entailed a
specific form of love, a selfless love or caritas. The recourse to the utilization of force in
war was not based on a passive acknowledgment of the action of a properly Christian
state or a simple license for Christian participation in the official actions of such a state.
20 See Richard J. Regan, S.J., Just War, Principles and Cases (Washington, DC: Catholic University of
America Press, 1996), 4-7.
21Augustine City of God xix, 12. All citations from translation by Gerald G. Walsh, S.J. et al (New York:
Image Books, 1958).
22 Hannah Arendt's doctoral thesis on centrality of social obligations in Augustine's ethical writings is
contained in Love and Saint iiiii,, .. eds. Joanna V. Scott and Judith C. Stark, (Chicago: University of
Chicago Press, 1996), 100.
Rather, it was an affirmative requirement of love necessitating an intervention in the
affairs of humanity.
Following both the neo-Platonists and the Stoics, Augustine rejects the
essentialism of Aristotle that legitimates war and even slavery on the basis of supposed
inferior or superior natural attributes possessed by various human groups. The central
premise of Aristotle's Politics was that humans are naturally destined from birth to either
rule or be ruled, to be slave or free, and that war is justified as a means of determining the
essential differences in humanity manifested in higher and lower degrees of virtue.23
Unlike Aristotle, Augustine argued for a unity of a shared human nature based on a sinful
disposition to place one's selfish interests ahead of the interests of others. Augustine's
teachings on just war, like his theology in general, is based on the foundation of human
equality. Rather than an equality based on inherent human goodness, Augustine's human
realism posited that humankind is inherently flawed and that this metaphysical truth
accounts for both the existence of war and the recourse to it. Consequently, the most that
can be hoped is "momentary respites" from conflicts, not their end.24 However, despite
his pessimistic assessment of human nature, Augustine considered the preservation and
betterment of human society as man's highest calling in the secular realm and that a
peace founded on justice -- at least a relative justice -- is possible and only after attaining
such justice should a return to a state of peace be celebrated.25
23 Aristotle Politics 1, 3-5.
24 Augustine City of God xv, 4.
25 Ibid., xv, 6 & xviii, 2.
Augustine was concerned with Christians serving the state in two basic functions:
that of judge and that of a soldier. During the late Roman Empire, both were occupations
intrinsically related, the role of soldier (miles) being a more expansive than in
contemporary societies where police and military functions are more formally separated.
Unlike the latter natural law theorists and political realists, Augustine spoke directly to
the executioners of state authority rather than kings or statesmen. Living during the reign
of Roman Emperor Theodosius who was championing Augustine's own version of
Christianity, Augustine had the integrity to reject the views of many of his Catholic
contemporaries who held that wars conducted in defense of such Christian states are
inherently just and those conducted by pagan or heretical states inherently unjust. The
commonly held belief attributing the holy war ideology of the Crusades to Augustine is
not supported in the texts of his writings.26
The 1983 Pastoral Letter of the National Conference of Catholic Bishops, The
Challenge of Peace, a document drafted under the guidance of the preeminent clerical
just war authority, J. Bryan Hehir, S.J., affirmed the centrality of St. Augustine to the
establishment of just war doctrine which consists of "eight fundamental principles or
Just Cause: The central tenet of traditional just war doctrine is Augustine's
dictum that a war is "justified only by the injustice of an aggressor."28
Competent Authority: War is both a public and official act involving, to
varying degrees, the act of judging the action of others or executing such a
judgment under the orders of a superior official.
26 On the prohibition against self-defense, see Regan, Just War, 17. For a critique of the myth of Augustine
as the progenitor of holy war ideology, see Markus, "Saint Augustine's Views," 10-13.
27 National Conference of Catholic Bishops, The ( lill,.i.- of Peace: God's Promise and Our Response: A
Pastoral Letter on War and Peace (Washington: United States Catholic Conference, 1983).
28 Augustine, City of God xix, 7.
Comparative Justice: The claim of possessing a just cause in war is always
relative and, consequently, parties to a conflict need to limit their objectives to the
relative gravity of the offense being redressed.
Right Intention: While the justification of war is aggression or an unjust
peace, the objective of war is a just peace.
Last Resort: Even when necessity demands it, war is a tragedy to be avoided
at all costs, save justice.
Probability of Success: Nothing is more obstructive to the establishment of a
just peace than indecisive or ineffective military action.
Proportionality: The unjust effects of warfare must be compensated for by the
actual ends of justice attained by resorting to warfare.
Discrimination: There is a distinction between combatants and
noncombatants and the intentional targeting of the latter is a criminal act, even in
an otherwise just war.
Although not in a systematic form, all these major principles of just war doctrine
can be found in Augustine. This is because the principles are not distinct, but inherently
interconnected. For example, the principle of discrimination is already implied in the
preceding criteria such as proportionality. The major just war theorist of the early Cold
War period, Paul Ramsey, argued "the justification of participation in conflict at the same
time severely limits war's conduct. Whatjustified, also limited."29
This traditional separation of just war principles into ius ad bellum (justice before
war) principles andjus in bello (justice during war) principles also overlaps. For
example, in their pastoral letter, the National Conference of Catholic Bishops classified
all just war principles except discrimination as ius ad bellum, with the central just war
principle of proportionality as an overlapping theme between ius ad bellum andjus in
bello principles.30 To emphasize that ius ad bellum concerns are not set aside once a war
is initiated, the leading secular theoretician on just war, Michael Walzer, delimits this
29 Paul Ramsey: The Just War: Force and Political Responsibility (Savage, Maryland: Littlefield Adams
Quality Paperbacks, 1968, 1983 New York: Scribner, 1968), 143.
30 See The ( 1ioll,. ,-, ofPeace.
dualism as grammatical rather then linear; an unjust war can be fought justly and a just
war and be fought unjustly, thereby becoming unjust.31
This historical development of just war doctrine was more characterized by
accommodation than innovation. Augustine and early just war theory is often associated
primarily with ius ad bellum concerns and late just war theory withjus in bello
concerns.32 However, the innovations of ius ad bellum principle of just cause introduced
by the Church in the eleventh century, such as indulgences for Crusaders and absolution
for the fallen find no basis in Augustinian just war doctrine.33 Later just war theorists
took great pains to avoid the appearance that they were adding anything to Augustine's
conception of just war. Even St.Thomas Aquinas (1227-1274), the official philosopher
31 "War is always judged twice, first in reference to the reasons states have for fighting, second with
reference to the means they adopt. The first is adjectival: we say that a war is just or unjust. The second is
adverbial: we say a war is being fought justly or unjustly." Michael Walzer,_Just and Unjust Wars, A
MoralArgument with Historical Illustrations, (New York: Basic Books, 1977), 21.
32 This was the former view of the author as found in Captain Lawrence Rockwood, U.S. Army, "Apology
of a Buddhist Soldier" Tricycle, A Buddhist Review (Spring 1996), 70-77. Others holding this position
include William V. O'Brien, "The International Law of War as Related to the Western Just War Tradition"
in Just War and Jihad, eds, John Kelsey and James T. Johnson (New York: Greenwood Press, 1991), 165,
and Homes, "St. Augustine and the Just War Theory," 338. The opposite is the present view of the author
and is also found in Paul Ramsey, War and the Christian Conscience, How Shall Modern War Be
Conducted Justly? (Durham, N.C.: Duke University Press, 1961).
33. The significant authoritative events in the eleventh century on the conduct of war were the concept of
the "Truce of God," put forward in 1041 by the Abbot Odilo of the great Benedictine motherhouse of
Cluny, which called for a cessation of hostilities on Holy Days, the "Peace of God, a call by the Council of
Narbonne in 1054 to protect the Church and the poor from the effects of warfare, and finally the preaching
of the First Crusade by Pope Urban II (also a Cluniac Monk) at the Council of Clermont on November 27,
1095. While the former two can be seen as an extension ofjus in bello prohibitions. the later, with its
arming of monks and priests, the indulgence giving total temporal pardon of all sin for participants (which
would include war crimes committed over the course of the crusade), and a total absolution for those who
died in battle finds no foundation in Augustinian just war tenets nor would they be authenticated by
incorporation into the tenets of later just war theorists. The slaughter of noncombatants for belonging to
another faith (although the defacto crusader principle of discrimination between Christians and non-
Christians was not always honored anyway) also finds no basis in writings of Augustus. Crimes against
civilians was specifically a concern of later just war theorists writing in response to the sixteenth century
Amerindian genocide In fact, Augustine discounted the entire ius ad bellum Cluniac rationale of Urban II,
the protection religious pilgrims. Augustine, like the early Greek Church, considered the act of pilgrimage
to be of little importance. See Steven Runciman, A History of the Crusades, v. 1 (New York: Harper
Tourchbooks, 1964), 39-40, 86. 107, and 108-109.
of the Roman Catholic Church during its second millennium, admitted to only expanding
on principles already found in Augustine.34
Just as in the case of the initiatives following international community's lack of
response to the genocides in 1994 in Rwanda and earlier in Nazi occupied Europe, most
major humanitarian initiatives are responses to historic humanitarian disasters. Such was
the case for the later just war theorists who responded to the failure of European empires
to uphold Augustinian ethics in their conquest and subsequent genocidal actions against
Amerindian populations. The Debate of Valladolid in 1550 between the Dominican
Bishop of Chiapas, Bartolome de Las Cases, and the Aristotelian scholar Gines de
Sepulveda marks the watershed between early and late just war theory. Based on his
claim of the natural superiority of Christian Europeans over the pagan Amerindians,
Sepulveda argued that the European conquest was just. Las Cases countered with his
famous "Aristotle, farewell" response:
The natural laws and rules and rights of men are common to all nations,
Christian and gentile, and whatever their sect, law, state, color and
condition, without any difference.35
Continuing Las Cases' defense of Amerindian populations, a fellow Dominican,
Francisco de Vitoria (1480-1520), and a Jesuit, Francisco Suarez (1548-1617), placed the
jus in bello criteria of proportionality and discrimination at the center of their writings.36
Vitoria, in his On the Law of War, associated the attribution of innocence to
noncombatants for the first time. Even so, he does not provide them an absolute
34 Thomas Aquinas, Summa ;i,i. '. ,.. II-II.
35 Bartolom6 de Las Cases, quoted in Tzvetan Todorov's The Conquest ofAmerica: The Question of the
Other (New York: Harper Perennial, 1992), 162.
36 Regan, Just War, 17-18.
dispensation against the effects of warfare, even allowing innocents to be "enslaved as
long as it is not "allowed to go beyond the limits which the necessities of warfare
The major differences between early and later just war theory is one of emphasis.
Just as nothing of Augustine is left out of Vitoria, nothing in Vitoria directly contradicts
Augustine. As stated by Father Hehir S.J., "...the logic of the argument from Augustine
through Vitoria, Michael Walzer and Paul Ramsey has been the same."38 This is
primarily the result that each of the just war doctrines components parts suggests the rest
of the doctrine.
Just War Doctrine and Post-Westphalian Legalism
With rise of the Spanish School of International Law that included Vitoria,
Suarez, and Hugo Grotius, the concept of the natural law was reintroduced into just war
doctrine. Natural law was added to just war principles without replacing them. The
major innovation of natural law theory was that it placed its emphasis of the statist
conception of law over the more ethical conception of justice. Although Aquinas is
principally known as the father of modem natural law theory and for introducing the
ideas of Aristotle in scholastic philosophy, he did not apply either to the concept of just
war. Natural law was incorporated into just war theory by his disciple Francisco
Vitoria.39 Aquinas divided all law into divine or eternal law or lex divina, natural law or
7 Francisco de Vitoria, On the Law of War, 3, 3-4, v. 43. All citations from the works of Vitoria are from
Vitoria, Political ; ;,,,ia,. eds. Anthony Pagden and Jeremy Lawrence (Cambridge: Cambridge University
Press, 2001), 319.
38 Bryan J. Hehir S.J. "Kosovo, A War of Values and the Values of War" inAmerica, v. 180 (May 15,
1999), 17, 7.
39 Vitoria, On the Law of War, concl, v. 60.
ius nature, the law of nations or ius gentium, and positive law or lex humana. According
to Aquinas, natural law is a rational appreciation of eternal law by human beings.40
Natural Law was an opportune instrument for theorists responding to the failure
of Christian Europeans to apply humanitarian norms in warfare with those who did not
share their creed as was clearly demonstrated in both the conquest of the Americas and
the Wars of Religion between Catholic and Protestant states culminating its bloodiest
chapter, the Thirty Years War (1618-1648). This lack of reciprocity by Europeans in
applying humanitarian norms to their enemies of alien cultures and religions finds no
bases in Augustine's actual teachings on war. Rather, it was established as precedent
during the Crusades and found continued expression in the conduct of the Christian
conquest of the Iberian Peninsula, the Protestant English conquest of Catholic Ireland, the
destruction of the indigenous populations of the Americas, and, finally, the military and
civil violence of the Reformation and Counter-Reformation.41
In the seventeenth century, Hugo Grotius (1583-1645), a Protestant who
advocated religious toleration, in his On the Law of War andPeace attempted to
secularize just war doctrine utilizing natural law theory. In addition to accepting the
claims of Vitoria that the jurisdiction of natural law was universal, he added three major
innovations: the relations of states could be judged as if they were individuals; crimes by
nations can be addressed the same way as individual crimes; and the reciprocity of malice
among nations must be replaced by a reciprocity of trust.42
40 Aquinas, Summa ;h,.. 1.,,,,,. I-II. Grotius later combined the law of nations into positive law leaving the
division of law into the categories: lex divina, lex naturalis, and lex humana. See Grotius in the
"Prolegomena" to De Jure Belli ac Pacis.
41 In reference to Augustine application of just war criteria to non-Christians, see note 37.
42 Two authors that utilized these four principles to characterize Grotius' contribution to the laws of warfare
include Robert A. Kahn, "The Law of Nations and the Conduct of War in the Early Times of the Standing
Grotius' optimistic view of the human condition contrasts with both Augustinian
human realism and the political realism of Grotius' contemporary, Thomas Hobbes
(1588-1679). Hobbes' infamous work, Leviathan, comprised a counter to optimistic
premises of Grotian natural law that continues to be posited by legal positivists and
political realists to the present.43 As a result of viewing war -- rather than God's or man's
reason -- as the true basis of natural law that results in a human existence where "life is
solitary, poor, nasty, brutish, and short," Hobbes preached an absolute preference for
peace based an absolute deference to will of a sovereign ruler of a nation state. 44
According to Hobbes, human law is simply a authoritative enactment based upon the
"coercive power, to compel equally to the performance" of obligations by individuals to a
sovereign who does not in turn answer to other sovereigns, their subjects, or any
universal law(s) ascribed to a higher power.45
For all their differences, both Grotius and Hobbes influenced and were influenced
by the Westphalian statist centered virtues of non-intervention in interstate affairs and
non-interference. Writing primarily for statesmen rather than for soldiers, Grotius and
Hobbes took different aspects inherent in Augustinian just war theory: justice, in case of
the former, and a realistic view of human nature in the later. Successor theorists in the
Westphalian tradition such as Cornelius van Bynkershoek (1673-1743), Emmeric de
Vattel (1714-1767), and Georg Friedrich von Martins (1756-1821), in various
Army" in Journal ofPolitics, (Feb. 1944) vol. 6, no. 1, 87 and Cornelis van Vollenhoven, Grotius and
Geneva (Leyden: Boekhandle en drukkerij voorheen E.J. Brill, 1926), 13-16.
43 See note 2.
44 Hobbes, Leviathan bk. i, chap. xiii & xiv.
45 Ibid., bk i. chap xv.
combinations, blended the natural law concepts of Grotius with the legal positivism and
political realism of Hobbes while maintaining the statism of both.46
Grotius is distinct from Hobbes in that he posited a universal maxim for
humanitarian norms that would be binding on states regardless of their religious or
ideological leaning. It is ironic that the modern concept of natural law, originating partly
as a device to deal with European's failure to act on the basis on humanitarian reciprocity
in dealing with populations that they considered alien, is used contemporaneously to
justify lack of action by western powers in dealing with humanitarian conflicts, to include
non-interference in genocides, in non-western nations. This was exemplified in the 1990s
when the western statist emphasis non-interference in the internal affairs of sovereign
states was cited most often in reference to humanitarian interventions in nations whose
civilization norms could be portrayed not sharing western legalist traditions. Anticipating
the contemporary debate on whether universal human rights norms are based on
culturally specific western discourse on individual rights vis-a-vis norms emphasizing
social obligations associated with many non-western cultures, the universality of the
Grotian emphasis on passive legalisms is certainly debatable. In the context of
understandable distrust of the religious sanctions so evident in the bloody conflicts of his
time, Grotius sought a secular universal norm that would transcend the religious disputes
of his time. Grotius utilized the passive injunction of the pagan Roman Emperor
Septimius Severus (146-211), "Do not to another what you do not wish to be done to
you" rather than the affirmative injunction of the golden rule found in Matthew 7-12,
46 Kahn, "Law of Nations" 90-100.
"Always treat others as you would like them to treat you."47 In contrast to religiously
derived affirmative obligations placed upon combatants in Augustinian just war doctrine,
Grotius' categorical maxim is a passive proscription of actions that cause harm to others,
a passivity that would become idiosyncratic to the western legalistic approach to human
In 1758, the Swiss scholar, Emerich de Vattel, published his encyclopedic Droit
des gens (1758; tr. Law of Nations, 1760). Vattel emphasized concepts that were directly
oppositional to those posited by Augustinian just war doctrine: the concepts of neutrality
and of voluntary state action. Neutrality is belief that a state or institution can maintain
an unprejudiced relationship to all parties to the conflict. His concept of the "voluntary
law of nations" left the final decision on whether to apply humanitarian norms at the
discretion of states whose sovereignty Vattel considered absolute.48
This Grotian natural law tradition of passive obligations reached it apex in the
'categorical imperative' of the eighteenth century German idealist philosopher Immanuel
Kant (1724-1804): "Act always in such a manner that the immediate motive or maxim of
thy will may become a universal rule in a obligatory legislation for all intelligent
beings."49 Rather than comprising a universal norm shared across time and space, the
passivity of ethical imperatives of both Kant and Grotius have been characterized as
47 Grotius cited by Arthur Schopenhauer, On the Basis of Morality, trans. E.F.J. Payne (Oxford: Berghahn
Books, 1995), n. 19, 70.
48 Emerich de Vattel, Le droit des gens. trans/ed. Joseph Chitty, (Philadelphia: T. & J.W. Johnson & Co.,
1879), bk. ii, art. 150 and bk. iii, art. 103.
49 As quoted by Lieber, Political Ethics, 56.
unique to modem European philosophical and religious thought.50 In contrast, just war
doctrine is based on an affirmative obligation for the care and protection of others
acknowledged in various forms by most of the major world religions. Additionally,
specific humanitarian norms placed upon combatants as individuals, similar to those
articulated by Augustine, are also found in the scriptural and classical ethical codes of
almost every major world culture. While the respective weights placed on ius ad bellum
versusjus in bello vary from society to society, these two basic components of the early
just war doctrine are not unique to Augustine, Christianity, or the West. However, the
western emphasis on the ius ad bellum is certainly in part due to greater interest of the post
Westphalian theorists, whether natural law or positivists, in the actions of rulers and
statesmen who initiate conflicts over the actions of soldiers who conduct them. By contrast,
Islamic law stresses the conduct of war and the mitigation of its "harmful consequences"
rather than the just or unjust causes of wars; additionally, many Asian and African religious
and ethical codes also emphasizejus in bellum ethics in the conduct of war.5
50 This was the position of a critic of both Kant's of Grotius' ethics, the nineteenth century German
philosopher, Arthur Schopenhauer who countered with universal ethic basic the natural foundation of
human interconnectedness, As the foremost advocate integrating ancient Indian and modem philosophy, he
posited what he considered a truly universal ethic which mandated an affirmative intervention in the affairs
as found in the globally shared teaching of Vedic Hinduism, Buddhism, and early Christianity.
Schopenhauer tried to further universalize Kant's passive imperative of Neminem laede (Injure no one) into
a affirmtaive imperative of Neminem laude immo omnes, quantum potes, lava (Injure no one, on the
contrary, help everyone as much as you can). See On the Basis of Morality, 70.
51 Forjust war elements in Islamic sources, see Said El-Dakkak, "International Humanitarian Law Lies
Between the Islamic Concept and Positive International Law" International Review of the Red Cross
(1990) p. 101-116. For Buddhist sources: see Rockwood, "Apology of a Buddhist Soldier," 70-77. Other
non-western sources -- such as Hindu texts such as the Mahabharat and Ramaajan, the ethical guidelines of
the Hindu Kshatria warrior caste, Sun Tzu's Chinese classic The Art of War, and several African sacred
traditions place more on the conduct of war and the mitigation of its "harmful consequences" rather than
the just or unjust causes of wars. A review of the 1988 1994 volumes of International Review of the Red
Cross on the international origins of humanitarian law reveals that the emphasis on is ad bellum is not a
universal characteristic of the discussion of the morality and the ethics of violence in war. See especially
Professor L. R. Penna's "Written and Customary Provision Relating to the Conduct of Hostilities and
Treatment of Victims of Armed Conflict in Ancient India," (1989) and Mutoy Mubiala's "African States
and the Promotion of Humanitarian Principles" (1989).
In the west, war is a political action of the state. From Aristotle to Lieber, the
intellectual analysis of warfare is usually related to the conception of the state holds in
the worldview of the analyst. Georg Fredrich Hegel, the eminent statist philosopher of the
Nineteenth Century, considered the state as a godlike manifestation of the ethical force of
history.52 Lieber, in his Political Ethics, returned to a view of the state as a living or
organic institution in that it is composed of living human beings that was shared by
Augustine. For both Lieber and Augustine, the existence of a state always involves a
certain level of societal consensus on moral and ideological principles that influence the
means a given state utilizes to achieve it ends, including war. Considering this shared
instrumentalist understanding of the nature of the state and their antipathy to anti-
Aristotelian views on ethics especially on slavery, the theoretical congruence on
normative principles in warfare between Lieber and Augustine -- although writing a
millennium apart -- is not so surprising.53
The perennial debate between proponents of natural law and legal positivism has
not only polarized the discussion of humanitarian norms in war over the last three
centuries, it underpins the current debate over the universality of human rights in general.
The Westphalian emphasis on law over justice plays into the hands of the advocates of
Western exceptionalism who emphasize the West versus East dichotomies to include the
western emphasis on (1) individual rights over communitarian obligations and (2)
52 Hegel's defined the state as the "concrete manifestation of the "ethical whole" and the "essential being,
the unity of the subjective will and the universal." See Lectures on the Philosophy of World History, trans.
H.B. Nisbet (Cambridge: Cambridge University Press, 1975; reprint 1984), 93.
53 For Augustine and other classical writers, the basic political unity was the city. "The source of
blessedness is not one thing for a human being and another for a city: a city is indeed nothing other than a
like-minded mass of human beings." See Augustine to Macedonis, Letter 155. For Lieber, the state is a
society composed of those "who have the same interest and strive unitedly for it." See Political Ethics,
political and civil rights over social, cultural, and economic rights.54 Critics of the
concept of universal norms, such as Samuel P. Huntington, have claimed that the concept
of natural law, as one of the unique components of "the rule of law," is one of the
"distinguishing characteristics of Western society" and that to apply it to other
civilizations is a "universalist pretension." 55 This East-West dichotomy in human rights
norms is a false one. Augustinian just war doctrine, in that it is free of either form of
Western legalism (either natural or positive) and its emphasis on obligations rather than
rights is far more universal than the political legacy of Europe's Westphalian system.
One does not have to look to other cultures and times to find alternatives to
Westphalian legalism that follow the basic assumptions of Augustinian just war doctrine.
The Protestant theologian Reinhold Niebuhr also argued in favor of Augustinian realism
over natural law. Associating the Aristotelian need to find a historical order that
conforms to nature, a need that always is compromised by the forces of self-interest,
Niebuhr maintained that the "supposed sanctities of the law" are always tainted by
ideology. Although he was considered the spiritual father of Cold War era political
realism, he also differentiated his realism from the vulgar form of political realism of
those who "see only their own interest and failing thereby to do justice to their interest
where they are involved in the with the interest of others."56 Although usually associated
54 For discussion of the East v. West dichotomy in the debate on human rights universalism, see Daniel A.
Bell, East Meets West: Human Rights and Democracy in East Asia (Princeton: Princeton University Press,
2000), Thomas M. Frick, "Are Human Rights Universal" in Foreign Itl I, (Jan/Feb 2001) vol. 80, no. 1,
191-204, and Peter R. Baehr, "Controversies in the Current International Human Rights Debate" in Human
Rights Review (Oct-Dec 2000), vol. 2, no. 1, 7-32.
55 Samuel P. Huntington, The Clash of Civilizations and the Remaking of World Order (New York: Simon
& Schuster, 1996), 69-70, 187.
56 Niebuhr, "Augustine's Political Realism" 132, 134. Niebuhr reached "conclusions about the propriety of
war not substantially different from those of traditional just war theorists." See Regan, Just War, 18.
with the views of Catholic theologians, just war doctrine finds other non-Catholic
parallels in the teachings on ethics of violence and war as found -for example -- in the
teaching of such non-Catholic forums as the National Council of Churches.57
Just War Criteria and General Order No. 100
Richard R. Baxter, who was the author of the current successor document of
General Orders No. 100, the current Department of Army, Field Manual 27-1, The Law
ofArmed Conflict,58 stated that the Lieber Code was "little more than an amplification of
the ideas" Lieber expressed twenty-five years before.59 In his 1838-39 Manual of
Political Ethics, Lieber succinctly summarized traditional just war doctrine:
A war, to be justified, must be undertaken on just grounds--that is, to repel
or avert wrongful force, or to establish a right; must be the last resort--that
is, after all other means of reparation are unavailable or have miscarried; it
must be necessary--that is, the evil to be addressed should be a great one;
and it must be wise--that is, there must be reasonable prospect of obtaining
reparation, or the averting of the evil, and the acquiescence in the evil
must be greater than the evils of the contest. 60
Even though Lieber, as lay leader of Anglican Church in America, would
certainly have been aware of Augustine's writing he probably did not draw directly on
Augustine in either his Manual of Political Ethics or in drafting General Order No. 100.
However, his choice of international law sources indicates the aspects of the laws of war
he accepted and those he did not. He was most critical of Vattel; he ignored Hobbes, and
57 For Just war doctrine and Protestant denominations, see Regan, Just War 19.
58 Department of the Army, Field Manual 27-10, The Law ofLand Warfare (Washington D.C., Government
Printing Office, 1 Mar. 1954), hereinafter FM 27-10.
59 Baxter, The International Review of the Red Cross (April, 1963), n. 25, 176.
60 Lieber, Political Ethics, 446.
he acknowledged Kant.61 Although the term 'just war' does not appear in Lieber's code,
the substance of its 147 articles falls substantially within the eight traditional just war
principles. In that it avoids the natural law tenets of late just war theorists and post
Westphalian legalists, the articles of General Order No. 100 are more evocative of the
affirmative obligations of human realism of early or Augustinian just war doctrine.
The Augustinian requirement that the war must be a response to injustice or
aggression is not modified by the existence of the modern territorial state. While General
Order No. 100 posits that the object of war lies beyond war in the realm of the political,
the political end must be just:
Article 30: Ever since the formation and coexistence of modern
nations, and ever since wars have become great national wars, as come to
be acknowledged not for its own end, but means to attain great ends of
state, or to consist in defense against wrong; and no conventional
restriction of the modes adapted to injure the enemy is any longer
admitted; but the law of war imposes many limitations and restrictions on
principles of justice, faith, and honor.
Article 68: Modern wars are not internecine wars, in which the
killing of the enemy is the object. The destruction of the enemy in modern,
and, indeed, modem war itself, are means to obtain that object of the
belligerent which lies beyond the war.
Like Grotius, Lieber goes beyond Augustine's requirement that a just peace is
war's object in claiming that peace is the normal condition of mankind and "war is the
exception."62 However, there are some injustices that cannot be tolerated either for
61 Works cited by Lieber include Halleck's International Law, as well as Grotius, Bymkershoek, Pufendorf,
von Martins amongst many others less known authors on the Laws of War. See Baxter, International
Review of the Red Cross, no. 26, 224.
62 "Peace is their normal condition, war is the exception. The ultimate object of all modem wars is a renews
state of peace," General Order No. 100, Article 29. Grotius wrote: ...war is undertaken for the sake of
peace," De Jure Belli ac Pacis, bk. i, chap. 1.
raison d' etat or tolerated in the name of peace; one such injustice, for Lieber, was
slavery. Lieber must have known that his code's claim that "The law of nature and
nations has never acknowledged it (slavery)" contradicted natural law theorists of both
the Spanish School of International Law, such as Vitoria, and the notion of natural law
posited by Aristotle.63 As a resident of antebellum South Carolina for two decades, his
code's declaratory statement on the institution of slavery bypassed the contemporary
debate about the character of slavery. Lieber was well acquainted with the arguments
made by his contemporary intellectual rival, John C. Calhoun, to defend the institution on
the basis of Aristotelian natural law. Although -- as evidenced by his earlier works and
lectures -- no one was better qualified to discuss the precedence, legal or otherwise, on
the major causative issue of the American Civil War, General Order No. 100 simply
established the 'just cause' of the Union cause, the end of the slave system in the South, as
In Lieber's Political Ethics he wrote, "the state is an institution for a distinct moral
end."64 In the context of both his life's work and his code's reference to the American
Civil War, the "great ends of state" are never morally neutral.
Grotius, like Hobbes, spoke of authority in absolute terms of a sovereign power,
whose independent actions are not subject to any other power.65 Lieber's writings on war
are dominated by a pre-Westphalian emphasis on those who execute authority rather than
63 For Vitoria's defense of limited slavery, wee note 47. For Aristotle's unlimited defense of slavery, see
64 Lieber, Political Ethics, 81.
65 Grotius, De Jure Belli ac Pacis, Book I, chap. 2, article vii.
the rights and prerogatives of rulers who were more than likely to be the absolute
monarchs Lieber so despised. Lieber, like Augustine, realized soldiers often err in
correctly determining who has competent authority over them, the result being a major
proximate cause of the wars of their times. Much of Augustine's views on the military
profession are derived from his correspondence with Boniface, a renegade Roman
general, in which Augustine counseled to return to a proper allegiance with Rome.66
Lieber watched as thousands of soldiers followed key American military leaders in taking
up arms against the United States by bestowing their allegiance to an authority the
Confederacy -- whose competence Lieber challenged. Tragically for Lieber, one of the
soldiers who made this mistake in judgment was his own son who died in the great
historical referendum on constitutional allegiance known as the American Civil War.
One of the major acts of the wartime U.S. Congress was to ensure that such a bloody
referendum would never be repeated. During the course of the war, legislation was
passed that clearly defined and prioritized the criteria that soldiers must utilize in
determining proper competent authority. The oath of office that soldiers take upon
entering military service -- pledging allegiance to the Constitution, the President, and
their appointed military leadership, in that precise order -- remains in use to this day.67
For Augustine, soldiers were related to the civil judges of his day in that they
acted, not as individuals, but upon authority. Individually, as a flawed human being, a
judge or soldier can at best be an imperfect instrument of justice. Although it is never a
66 Augustine wrote to the renadage Boniface that "if Roman Empire provides you with goods things, even if
they are ephemeral and earthly (for it is an earthly, not an heavenly, institution and can only provide what is
in its power); if then it has bestowed good things upon you, do not return evil for good." See i,'r '"', ,..- to
Boniface, Letter 220 (8).
67Edward M. Coffman, "The Army Officer and the Constitution," Parameters (September 1987), 2-12.
personal act, the unavoidable exercise of the coercive prerogatives of government is
always contaminated by personal hypocrisy. Therefore, according to Augustine, all
officials are faced with the incongruity of exercising competent, but not credible,
authority.68 Although their official status made soldiers and judges distinct from other
human beings, Augustine admonished his fellow civilians that they "must not think that
no one who serves as a soldier, using arms for warfare, can be acceptable to God."69
For both Lieber and Augustine, soldiers differed from murderers not merely
because their acts were official. Official acts also had to be competent; specifically, they
had to be competent in integrating moral and ethical concerns of justice into a
professional field of expertise. Lieber went further than Augustine in approving a special
sanction for those under arms for acts that would be criminal or sinful if based on
personal motivation; he held that soldiers -- owing to the trust bestowed upon them --
must adhere to even higher ethical and moral standards than civilians. In article four,
discussing martial law, Lieber posited that the "principles of justice, honor, and
humanity-virtues adorning a soldier even more than other men, for the very reason that he
possesses the power of his arms against the unarmed." For both Lieber and Augustine,
soldiers were certainly not passive beings simply following someone else's orders; rather,
a soldier's competence should always be the result of an active and properly understood
68 See Augustine, Letter to Macedonis (a Catholic official), Letter 153. Augustine's political writing are
peppered with supplications to Christians officials to meditate on their own imperfection in context of their
judgment of others by constant referrals to the Gospel passage in which Jesus cautions the would be
executioners of the woman caught in adultery: 'If any of you are without sin, let him be the first to cast a
stone at her.' See Augustine, Commentary on the gospel of John, 33, and On the feast of St. Lawrence,
Sermon 302, (7).
69 Augustine to Boniface, Letter 189 (4)
By Lieber and Augustine placing military duties in an affirmative character
(italics mine) which compels action rather than inaction, the soldier -- as a tool of the
state -- is guilty of a "double injustice" if the inaction leads to the harm of those he or she
is bound to defend. Therefore, when soldiers commit crimes in the direct performance of
their military duties, they are always crimes of omission rather than commission. Such
crimes of omission are more grievous than crimes of commission.70
The most problematic aspect of the legalistic approach to the establishment of
enforceable humanitarian norms in warfare is that of the application of guilt to collective
entities. Augustinian just war doctrine does not, as some have claimed, posit that only
one combatant can lay total claim to virtuous intent or conduct. 71 Virtue and guilt, as
determined by imperfect human judges, are imperfectly determined. Unlike Vattel, who
argued that the justice of opposing combatants are to "be considered as two individuals
disputing on the truth of a proposition; and it is impossible that two contrary sentiments
should be true at the same time," neither the Augustine nor Lieber held to either a
simplistic or absolutist attribution of justice between the opposing sides of a conflict.72
On June 1, 498, the pagan citizens of the North African own of Calama engaged
in a anti-Christian riot that led to the loss of life. Nectarius, a distinguished pagan Roman
official wrote to Augustine asking him to intercede for his fellow townsmen who he
70 Arthur Schopenhauer wrote that "there are actions whose mere omission is a wrong, and they are called
duties." He coined the term doppelte UL,. i.. ,.r,. t or "double injustice" to describe the "non-fulfillment
of a obligation" that leads to the injury of another person. See On the Basis of Morality, 156.
71 Robert L. Homes, "St. Augustine and the Just War Theory" in The i,,ii ',,,,i,, Tradition, ed. Gareth B.
Matthews (Berkeley: University of California Press, 1999), 336.
72 Vattel, Law ofNations, bk. iii, art. 39.
claimed were not responsible for the act. Augustine counseled his petitioner that he was
doing his fellow citizens a disservice by not acknowledging that there are many levels in
which individuals are guilty for collective acts and that it might not be possible to
"distinguish the innocent from the guilty out of the whole city, but only the less guilty
from the more guilty." Augustine provided three levels of individual complicity in
collective acts: those who "lacked the offer to help" to the victims out of fear "were
guilty of only a minor sin;" those who "actually committed them are implicated more
deeply; and those who instigated them most deeply of all."73
Like Augustine, Lieber did not hold that a just cause should manifest itself as a
crusade against evildoers (italics mine) or against collective entities comprised of
individuals who were equally guilty for the injustices perpetrated by the collective and,
therefore, liable to uniform treatment by the opposing forces. In his code, no loyal citizen
of the Confederacy was an innocent entitled to be totally spared from the consequences of
the war.74 General Order No. 100 places all enemy citizens into two major categories:
unarmed citizens and armed citizens. The former subdivided further into seven
subdivisions, each with separate protections accorded to their life and property:
1. Private Citizens. Noncombatants serving in no official capacity are protected
from being "murdered, enslaved, or carried off to distant parts." (article 22)
2. Magistrates and Civil Officers. Commanding generals are allowed to force
oaths of temporary allegiance or to expel those who refuse. (article 23)
3. Slaves. Those formally held in bondage are "immediately entitled to the
rights and privileges of a freeman." (Article 43)
4. Noncombatants Accompanying an Army. Commanders are permitted to
confine and process as prisoners of war. (Article 50)
73 Augustine to Nectarius, Letter 91 (9).
74 General Order No. 100, art. 21.
5. Heads of State and Diplomatic Agents. Unless previously granted safe
passage, they are to be treated as prisoners of war. (Article 50)
6. Spies. All espionage is punishable by death. (Article 88)
7. Guides. Their treatment varies from no punishment for those forced into
service to death for those intentionally misleading a force. (Articles 94-97)
General Order No. 100 subdivides enemy combatants into nineteen distinct
categories, each entailing specific treatment upon capture:
1. Prisoners of War. Soldiers taken prisoner, who have committed no otherwise
unlawful acts, are not subject to "punishment for being a public enemy, nor is
any revenge (to be) wrecked upon him by the intentional infliction of any
suffering, or disgrace, by cruel imprisonment, want of food, by mutilations,
death, or any other barbarity." (Article 56)
2. Deserters. Former soldiers of the U.S. Army, taken in the service of the
Confederacy, are to be put to death. (Article 48)
3. Chaplains and Medical Staff. May be treated as prisoners of war either by a
commander's determination of necessity or their own voluntary request.
4. Hostages. Although rarely used in modem war, they are to be treated as
prisoners of war. (Article 55)
5. Criminals. Enemy soldiers who have committed crimes against their own
forces or people, before being captured, can be punished by their own
authorities. (Article 59)
6. Deniers of Quarter. Those have failed to give others quarter are to be denied
quarter in turn. (Articles 61-62)
7. Soldiers Captured in the Uniform of Their Enemy. Like spies, such soldiers
are also given no quarter. (Articles 63 & 83)
8. Outposts, sentinels, and pickets. Unless it is determined of military necessity,
opportunistic firing upon their position is prohibited. (Article 69)
9. Users of Poison. Offenders are to be put to death. (Article 70)
10. Assaulters of the Injured: Offenders are to be put to death. (Article 70)
11. Escapees. While firing upon prisoners in the process of escape is permitted,
the attempt is not a crime unless it is part of a general conspiracy. (Article 77)
12. Partisans. Defines them as "soldiers armed and wearing the uniform of their
army," but detached from the main body of the enemy, they are to be treated
as prisoners of war. (Article 81)
13. Brigands and Pirates. Soldiers committing acts of private violence are subject
to death. (Article 82)
14. Irregulars not wearing uniforms. Armed civilians or insurrectionists, who kill,
steal, or destroy infrastructure or materials of the occupying are not entitles to
be treated as prisoners of war. (Articles 84-85)
15. War Traitor. Non-enemy personal who provide information to the enemy
become an enemy who may be punished by death. (Articles 89-91).
16. Messengers. If in uniform, they are to be treated as prisoners of war. (Article
17. Bearers of a flags of truce. They are to be cautiously admitted. If admitted
under false pretenses, they are to be treated as spies. (Articles 104-109)
18. Breakers of Parole. Released prisoners of war, who have violated their
voluntary pledge not to engage in future acts of warfare, can be put to death
upon recapture. (Article 124)
19. Officers / non-commissioned officers. They are allowed special honors and
treatment. (Articles 73 & 127)
General Order No. 100, as it applied humanitarian considerations to an enemy
whose legitimacy was not recognized by the United States was an exercise of
comparative justice in its entirety. Even though the final article (article 157) defined the
"armed or unarmed resistance by citizens of the United States against the lawful
movements of their troops" as treason. Nevertheless, all enemy citizens -- whether
combatants or noncombatants -- were entitled to certain norms of humanitarian treatment
in spite of being expected to bear a higher burden of the war than "manifestly loyal
citizens." (Article 156).
As with Augustinian just war doctrine, the natural law association of non-
combatency with legal innocence is absent from General Order No. 100. Additionally,
the sloppy attribution of collective guilt, as defined as holding individuals responsible for
the collective actions of organizations or institutions by mere membership without any
evidence of an individual act, is also absent.
While the justification of war is aggression or an unjust peace, for Augustine the
objective of war is a just peace. "Peace ought to be what you want, war only what
necessity demands.""75 The hackneyed phrase, "the end justifies the means," has never
been an accurate description of just war doctrine. Rather, just ends justify proportional
means. Just war doctrine predates the legalist debate between naturalism and positivism;
it also predates the philosophical debate between ethical normativism and ethical
consequentialism. Normative, or deontological ethics, is the theory that the efficacy of
moral action in reference to formal rules or norms of conduct. Consequentialist or
teleological ethical theories stress that it is consequences rather than intentions that
determines the correctness of any given action. Both Augustine and Lieber were seminal
ethical theorists who argued that actions are only moral when both intention and result
75 Augustine to Boniface, Letter 189 (6)
76 For both Augustine and Lieber, the basis for ethical action is a selfless love (Augustine, see note 31) or
the possession of si minpilth or fellow feelings" for others (Lieber, see Political Ethics, 20) that must be
expressed by a constructive engagement with the world as its is rather than as it ought to be. While Lieber
admired the universal tone of Kant's categorical imperative, he dismissed intentionalism. passivity, and
otherworldliness of Kant's ethics when he wrote "Laws and institutions are nothing more than dead forms
of words, unless they operate." See Lieber, Political Ethics, 78.
Echoing Augustine, Lieber argued, "wars are not internecine wars, in which the
destruction of the enemy is the object;" rather, war is a "means to obtain that object of the
belligerent which lies beyond the war."(Article 68) A just war entered into by competent
authority for a just cause can still be fought with unjust intent by either the leadership or
the actual participants of a conflict. Soldiers cannot see into the hearts of their leaders.
Sometimes, that may be fortunate. However, soldiers can never categorically defer their
consciences to higher authority. Except for criminal behavior, a soldiers acts on his (or
her) intentions when he is "armed by a sovereign government and takes a soldier's oath
of fidelity, he (then) is a belligerent, his killing, wounding, or other warlike acts are not
individual crimes or offenses."(Article 57) Even if the decision for the soldier to enlist is
often coerced, soldiers are partially responsible for justice or injustice of the cause for
which they fight at the time they first don their uniforms. Just as the electorate is
accountable for the future actions of politicians they supported at the time they dropped
their ballots, soldiers are responsible, as far as their understanding and knowledge allows,
for historical justice or injustice of the military institution they are joining. Only when
soldiers (or the electorate) obtain new information indicating criminality on the part of
those whose authority they have previously validated, can they claim to be faced with a
new ethical decision.7 Consequently, soldiers must proceed not with blind faith, but
with a common sense and informed faith that their superiors are acting according to the
7 The famous case of Yolanda Huet-Vaughn, a U.S. Army Reserve captain who served eight months in
prison for refusing to serve in the gulf war, involved a soldier who claimed to refuse to be deployed on the
basis of refusing to serve in an unjust war. Her critics emphasized that she accepted a commission and
serving actively in the reserves during a period in which the U.S. military was involved in similar
operations, albeit on a lesser scale. The Army's Court of Military Review finally overturned her
conviction, ruling that she was denied the opportunity at her trial to present evidence that the gulf war was
specifically illegal and immoral. See Colman McCarthy, "Anti-War Doctor Under Fire" in The
Washington Post (November 30, 1993), Z12.
stated political and ethical ends of the war. Unfortunately, history is replete with
examples of wars lost because national and military leaders who have betrayed this trust
have employed military means incongruent with the political and moral ends sought.
Even when necessity demands it, war is a tragedy to be avoided at all costs, save
justice. Augustine still demanded that no matter how just the cause, those in positions of
authority must begin by "bewailing the necessity he is under of waging wars, even just
wars."78 Augustine naturally argued that it is better to achieve justice without recourse to
war. "However, greater glory is still merited by not killing men with swords, but war
with words, and acquiring or achieving peace not through war but through peace itself79
Augustine reflected the position found in Sun Tzu's Chinese classic, written down nine
hundred years before: "To subdue the enemy without fighting is the acme of skill."80
However, if a resort to war is justified, it must be successful. Just as all states do not
exist in a Westphalian equality, all wars are not equal. If the preferred level of war is no
war at all, it follows that larger wars require more justification than more limited wars.
It is clear that the Confederacy, with less material and human resources, would
have benefited if both sides resorted to a more "limited" war. The Civil War was fought
under the conflicting legacy of two previous wars: the American War of Independence
and the Wars of the French Revolution. At the outbreak of the Civil War, the
Confederacy styled itself as fighting the second phase of the American War of
8 Ibid., xix, 7.
79 ijri l." to Darius, Letter 229 (2).
80 Sun Tzu, The Art of War, trans. Samuel B. Griffith (London: Oxford University Press, 1963, reprint
Independence; the United States styled itself as fighting a limited statist, post-
Westphalian war for the preservation of the Union. Unlike the American Revolution, the
French Revolution introduced not only warfare that was revolutionary in its ends, but in
the level of warfare.
General Order No. 100 was a testament to the new level of war that the United
States government in 1863 was going to resort to, a revolutionary level of war. For that
reason, Lieber's code was categorically rejected by the Confederacy. In limited wars, as
in the case of the campaigns of King Frederick the Great of Prussia, the genius of a
general utilizing maneuver could win out over an enemy with greater resources or, in the
case of wars for independence, belligerent forces could press the war past the threshold of
cost an enemy was willing to bear. Unfortunately for the South, no amount of battlefield
genius or even the greater human losses suffered by the other side would overcome the
political and moral determination of the side with greater material and human resources
to resort to more unlimited war.81
In his June 24, 1863 letter to Washington rejecting General Order No. 100,
Confederate Secretary of War James A. Seddon claimed Lieber's Code was an
opportunistic justification by the United States for its resorting to a level and conduct of
war he found unacceptable. Seddon could not have failed to appreciate the timing of its
release of General Order No. 100 (starting in May 1863), just as Lincoln was issuing a
plan for the southern reconstruction based on the end of slavery and as U.S. Grant was
deploying for his forces for his victory at Vicksburg (May 19-July 4) leading to the
81 In future wars, the United States Army would continue to engage in wars with the advantage of greater
material resources than its adversaries, but not always with the moral determination to accept the costs that
resorting to war entails. That was not the case for the United States Army in 1863 as it finally started
accepting the costs required to win of a war of military attrition.
ascendancy of a commanding general who was willing to expend a revolutionary level of
casualties to achieve a revolutionary end. Simultaneously, Robert E. Lee was engaged in
his final attempt to win the war by maneuver, resulting in his defeat at Gettysburg (July
1-4) marking the demise of the Confederate effort to win a limited war of maneuver in
the face of a conflict that was rapidly becoming a revolutionary war of attrition.82
Probability of Success
The central concept of General Order No. 100 is the doctrine of an affirmative
military responsibility based upon, rather than in contradiction with, military necessity.
Like Lieber, Augustine understood that a just war cannot bring about justice in defeat and
only "when victory goes to the side that had a juster cause (is it) surely a matter of human
rejoicing, and the peace is one to be welcomed.83 Augustine also wrote, "Therefore it
ought to be necessity, and not your will, that destroys the enemy who is fighting you."84
Nothing is more obstructive to the establishment of a just peace than indecisive or
ineffective military action. The most unjust outcome in war -- of which there are
numerous contemporary examples -- is one in which neither combatant attains, or is
allowed to attain, success.
The doctrine of military necessity is the major conceptual link between Lieber's
code and Augustinian just war doctrine. For Lieber, military necessity consisted of two
major components: (1) that "no conventional restriction of the modes adopted to injure
the enemy is any longer admitted; but (2) the law of war imposes many limitations and
82 Letter from James A. Seddon, to Robert Ould, 24 June, 1863. See note 22.
83 Saint Augustine, The City of God, xv & 4.
84 Augustine to Boniface, Letter 189 (4).
restrictions on principles of justice, faith, and honor." (article 30). Articles 14-16 are the
most cited articles of the code and consist of Lieber's attempt to clarify these two
seemingly contradictory themes:
Military necessity, as understood by modern civilized nations, consists in
the necessity of those measures which are indispensable for securing the
ends of war, and which are lawful according to the modern law and usages
of war. (article 14)
Military necessity admits of all destruction of life or limb of armed
enemies, and of other persons whose destruction is incidentally
unavoidable in the armed contests of the war; it allows of the capturing of
every armed enemy, and every enemy of importance to the hostile
government, or of particular danger to the captor; it allows of all
destruction of property, and obstruction of the ways and channels of
traffic, travel, or communication, and of all withholding of sustenance or
means of life from the enemy; of the appropriation of whatever an enemy's
country affords necessary for the subsistence and safety of the army, and
of such deception as does not involve the breaking of good faith either
positively pledged, regarding agreements entered into during the war, or
supposed by the modem law of war to exist. 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. (article 15)
Military necessity does not admit of cruelty this is, the infliction of
suffering for the sake of suffering or for revenge, nor of maiming or
wounding except in fight, nor for torture to extort confessions. It does not
admit of the use of poison in any way, nor wanton devastation of a district.
It admits of deception, but disclaims acts of perfidy; and in general,
military necessity does not include any act of hostility which makes the
return to peace unnecessarily difficult. (Article 16).
Even success of a just war does not result in nirvana, only a more just peace. The
justness of the peace sought must compensate for the suffering created by the decision to
resort to warfare. Augustine wrote that faith must be kept not only with the "friend, for
whose sake one is fighting, but "even with an enemy against whom one is waging war."85
85 Ibid., (6).
That faith is violated when the means to attain an end are not commensurate to the end
that is sought. Proportionality is impossible in the absence of a recognition of reciprocity
in value of life and dignity of the human populations on each side that are affected by the
conflict. Proportionality is based upon the humanity of the enemy as being equal to one's
Advances in technology always challenge proportionality. The longevity of
General Order No. 100 as official doctrine was likely the result of Lieber's avoidance of
issues related to technology. For Lieber, what is proportional is what is simply what is
necessary. "Unnecessary or revengeful destruction of life is not lawful." (Article 68).
During the Cold War, discussions as to whether the use of nuclear weapons can ever be
considered proportional dominated discussions among modern just war theorists.2
Authoritive decisions regarding proportionality and the utilization of new technologies, at
least in theoretically democratic states, are made by civilians. No matter how much
weight civilian leaders give to the opinion of military advisors, the decision of the Allies
to firebomb cities and resort to nuclear warfare during the Second World War was legally
and constitutionally the responsibility of civilians.
Out of all the criteria associated with just war doctrine, it is a soldier's particular
function to discriminate between the combatant and the noncombatant. The term
1 Lieber's doctrinal longevity is also related to his avoidance of maneuver. Lieber's purpose, in spite of his
direct experience of war, was not to provide general of regular forces with tactical and strategic principles
to defeat other regular forces in set battles. Although he intended his code to be applicable in all In fact, his
code emphasized the very aspects that regular force commanders have always tried to avoid and never have
and never will succeed in avoiding, costabulalary function and the handling of irregular forces.
2 See Walzer, Just and Unjust Wars, 251-283; O'Brien, "The Challenge of War: A Christian Realist
Perspective" in Just War Theory, 169-196; Regan, Just War, 100-121; and Ramsey, The Just War, 211-258.
It is ironic that, now that the necessity for such means has diminished, the issue of proportionality and
nuclear as all but ceased in being a central concern.
"noncombatant" refers not only to civilians, but also to disarmed combatants and other
captives. Writing to a soldier, Augustine wrote, "And just as you use force against the
rebel or opponent, so you ought to use mercy towards the defeated or the captive.88
However, just as there is nothing in Augustine or Lieber to attribute innocence to
noncombatants and guilt to combatants, there is also no categorical prohibition against
actions involving 'unintentional' noncombatant casualties. As in the case of military
necessity, discrimination for Lieber consists of two distinct components.
The citizen or native of a hostile country is thus an enemy, as one of the
constituents of the hostile state or nation, and as such is subjected to the
hardships of the war. (article 21).
Nevertheless, as civilization has advanced during the last centuries, so has
likewise steadily advanced, especially in war on land, the distinction
between the private individual belonging to a hostile country and the
hostile country itself, with its men in arms. The principle has been more
and more acknowledged that the unarmed citizen is to be spared in person,
property, and honor as much as the exigencies of war will admit. (article
For Lieber, the combatant / noncombatant distinction is a relative one based on a
degree of participation of an individual in a war effort. Although the determination of
relativity is accomplished by referring to other traditional just war criteria -- specifically
comparative justice and proportionality, the intentional, non-incidental murder of a
noncombatant is always a crime. The one exception to this rule for Lieber was a limited
form of retaliation to be used against a "reckless enemy" who leaves to "his opponent no
other means of securing himself against the repetition of barbarous outrage."(article 27)
Retaliation will, therefore, never be resorted to as a measure of mere
revenge, but only as a means of protective retribution, and cautiously and
unavoidably; that is to say, retaliation shall only be resorted to after
careful inquiry into the real occurrence, and the character of the misdeed
that may demand retribution. Unjust or inconsiderate retaliation removes
88 Augustine to Boniface, Letter 189 (6).
the belligerents further and further from the mitigating rules of regular
war, and by rapid steps leads them nearer to the internecine war of
savages. (Article 28)
The Legacy of General Order No. 100
The most controversial aspects of Lieber's code include his liberal use of the death
penalty for offenses proscribed by the code and his failure to categorically reject the right
of retaliation and to deny quarter in cases where quarter is not reciprocated.89 While the
right to quarter was unequivocally standardized in the Hague Conventions, retaliation
was not completely outlawed from the law and usages of war until the Geneva
Conventions of 1949. Until that time, retaliation was allowed in order to ensure that
humanitarian norms would be followed by each side of a conflict on the basis of
reciprocity. Despite Lieber's failure to categorically prohibit retaliation, as he did in the
use of torture, the United States Army carried out no retaliatory executions of
Confederate noncombatants during the war.
While modern human rights activists may take pause at Lieber's tentative
endorsement of reprisal, his categorical prohibition of the use of torture (article 16) is far
in advance of some prominent contemporary civil rights activists and legal scholars as
well as the behavior tolerated by the contemporary international community.90
89 For a discussion on contemporary views of General Order No. 100 on reference to reprisals and denial a
quarter, see Theodor Meron, "Francis Lieber's Code and the Principles of Humanity" in The Columbia
Journal of Transnational Law (1997), v. 36. 269-274.
90 Prominent civil rights attorney and Harvard Law School faculty member equivocated on a categorical
prohibition against torture to extort information from those he considered terrorists, first in the case of
Israel in 1988, and then in the case of the united States after September 11, 2001. See Ken Gewertz,
Harvard Gazette (December 13, 2001), 8. For other contemporary equivocations of the prohibition of
torture, see William V. O'Brien, "The Law of War, Command Responsibility and Vietnam" in The
Georgetown Law Journal (1972), v. 60. 648 and Michael Levin, "The Case for Torture" in Newsweek (June
7 1982). V. 99, 13(1), reprinted in The Norton Reader, 6th Edition (Ontario: Penguin Books Canada,
General Order No. 100 and International Humanitarian Law (IHL)
Only a year after Lieber's code was promulgated, the Swiss humanitarian Jean-
Henri Dunant drew upon the work of his fellow countryman, Emmeric de Vattel, to found
a code based upon the concepts of neutrality and of voluntary state action. The Geneva
Convention of 1964 for the Amelioration of the Conditions of the wounded and Sick in
the Armies in the Field, based of a draft by Dunant, provided protection of military
hospitals and a protocol for medical treatment for wounded soldiers based on reciprocity
between opposing armies.91 Just as Lieber's code is accepted as foundational in the
development of the modern 'laws of war' or "laws of armed conflict,' Dunant's work and
his establishment of the International Committee of the Red Cross in 1863 were pivotal to
development of the modern conception known as 'international humanitarian law' (IHL).
The contemporary usage of these terms is more reflective of the institutional affiliation,
military in the case of the former and non-government organizations (NGOs) for the later,
than one indicating a distinct area of expertise. However, it is possible to discern
conceptual distinctions in the development of what would eventually become areas of
specialization possessing so much overlapping content that they can no longer be
considered independent of the other.
Unlike Lieber who wrote for soldiers, Dunant was concerned with organizing
civilians to work cooperatively with military forces to mitigate unnecessary suffering. As
a witness to the Battle of Solferino between French and Austrian forces on June 24, 1859,
Dunant noted that neither side benefited from the suffering of wounded soldiers left
unattended to die on the field. If a neutral entity could provide relief under such
91 Frank Newman, ed., International Human Rights: Law, Policy, and Process, 2d ed. (Cincinnati: Anderson
Publishing, 1996), 3.
circumstances, why would either side not voluntarily allow the provision of such neutral
humanitarian aid? Upon this logic of neutrality and voluntarism, he established the
International Committee of the Red Cross. The ICRC's cherished ideal of neutrality has
lost much of its luster following the Rwandan genocide in which the international
community voluntarily chose to emphasize neutrality over humanitarianism as 800,000
noncombatants were slaughtered in plain view in 1994.92
Passive obligations easily become supplemental or secondary to obligations
considered primary or affirmative. In other words, passive obligations lead to passive
execution. Whether one looks at the international response to the 1994 Rwandan
genocide or infamous -- but procedurally correct -- ICRC visit to the model
Theresienstadt concentration camp during the Holocaust, the twentieth-century provides
ample material to those who question the effectiveness of passive virtues of voluntarism
and neutrality in establishing humanitarian norms.93 Dunant at least, unlike the
leadership cadre of such modern human right non-government organization (NGOs) as
Amnesty International and Human Rights Watch, did not look upon the profession of
92 One of the greatest critics of the ICRC's doctrine of neutrality and silence is M6dicins san Frontibres.
See Michael Ignatieff, The Warrior's Honor: Ethnic War and the Modern Conscience (New York:
Metropolitan Books, 1997), 124. The most authoritative critic of the international community's and his
own office's as former Under-Secretary-General for Peacekeeping Operations, problematic observance of
neutrality and voluntarism in humanitarian operations is Kofi Annan, Secretary-General of the United
Nations. See UN Press Release SG/SM/7263 AFR/196, (16 December 1999), the Report of the Secretary -
General Pursuant to General Assembly Resolution 53/35 (1998), Srebrenica Report, (1998), and the Report
of the Independent Inquiry into the Actions of the United Nations During the 1994 Genocide in Rwanda
(15 December 1999).
93 The ICRC continues to operate to this day under the protocol that it will only inspect confinement
facilities upon invitation of national authorities. On June 23, 1944, the Schutzstaffel (SS) voluntarily
allowed June 23, 1994, the neutral ICRC to inspect Theresienstadt. On September 27, 1944, Dr. Maurice
Rossel, the ICRC delegate, attempted to inspect Auschwitz and was refused by its commandant. A positive
effort by the ICRC to press the Third Reich would have violated its protocols. The ICRC now requires an
invitation to inspect all confinement facilities within a prison system. See ICRCAction on behalf of
Prisoners (Geneva: ICRC Publication, 1 Nov 1977).
arms as an adversary incapable of humanitarian concerns. Both Lieber and Dunant
appealed to soldiers' sense of military honor. For Lieber, however, humanitarian norms
could not be associated with passive obligations that busy military commanders could
consider supplemental or secondary to other objectives.
Just as it is clear that contemporary commentators like Howard Zinn are clear/y
outside of Augustinian just war tradition when attributing absolute (italics mine) non-
combatant immunity to traditional just war teaching, it would not be fair to hold Dunant
responsible for the absurdities that have been associated with his conceptual framework
in the late twentieth century by those claiming to be his heirs.94 He would have likely
found the modem notion that an armed force can claim neutrality even while holding
ground on foreign territory as incomprehensible. Despite their disparate approaches to
military affairs, both Lieber and Dunant recognized the benefit of engagement with the
military profession in the effort to mitigate humanitarian suffering in war and the efficacy
of appealing to soldiers' sense of honor. The anti-military essentialist bias found among
the leadership of such modern NGOs as Amnesty International and Human Rights Watch
finds its historical base in the Vietnam War era anti-war movement rather than in the
influence of Dunant and his ICRC.
The difference in content and emphasis for Lieber and Dunant underlie
contrasting, although not necessarily antagonistic, approaches to the end of removing
unnecessary suffering in war. The 1863 General Orders No. 100 and the 1864 First
Geneva Convention serve as foundational documents for the two major schools of
94 See Howard Zinn, "A Just Cause, Not a Just War," in The Progressive (December 2001), v. 65, 12.
modern international humanitarian law or the law of armed conflict: the Law of the
Hague and the Law of Geneva. As the inspiration for The Hague Convention of 1899
and 1907, General Order No. 100 provides a historical foundation for the affirmative
limits placed on conduct of war itself associated with the Law of The Hague.
Conversely, Dunant's convention is the foundation for the more passive and voluntary
protections for specific classes of individuals such as the protections afforded wounded
soldiers, prisoners of war, and medical personnel traditionally associated with the Law of
The Andersonville Trial
The obligatory discrimination between combatants and noncombatants is the one
responsibility that a combatant cannot transfer to a noncombatant. Rather than harming
those they are bound by definition to inflict harm upon, soldiers commit war crimes by
failing to render protection to those they are legally required to protect. While the murder
of a noncombatant may be a very active and voluntary act, it is insofar as his
affirmative obligations as a soldier an act of omission rather than an act of commission.
A soldier does not only have an affirmative responsibility not to violate this most
soldierly of all the just war criteria, he has an affirmative obligation to prevent other
soldiers from violating it as well. General Order No. 100 in addressing cases of "wonton
violence" against noncombatants, to include robbery, pillage, sacking, rape, wounding
maiming, murder, posits that "A soldier, officer or private, in the act of committing such
violence, and disobeying a superior ordering him to abstain from it, may be lawfully
killed on the spot by such superior."(Article 44). This requirement to enforce the just war
95 See Louise Doswald-Beck and Sylvain Vite, International Humanitarian Law and Human Rights Law" in
The International Review of the Red Cross (1993), v. 94, 293.
principle of discrimination is nothing less than the historical foundation of the doctrine of
Whoever intentionally inflicts additional wounds upon an enemy already
wholly disabled, or kills such an enemy, or who orders or encourages
soldiers to do so (italics mine), shall suffer death, if duly convicted,
whether he belongs to the Army of the United States, or is an enemy
captured after having committed his misdeed. (Article 71)
Telford Taylor argued that General Orders No. 100 was problematic in that it had
"little to say about enforcement of the laws of war, or about the bounds of 'superior
orders' and 'command responsibility,"'96 Whether or not one accepts these principles as
inherent or implied in General Orders No. 100, they certainly were central in the
immediate post war court-martial of Confederate Major Henry Wirz, the former
Commandant of the prisoner-of-war camp at Andersonville, Georgia for conspiracy to
"injure the health and destroy the lives of soldiers in the military service of the United
During the course of the American Civil War, Henry Wirz was the only soldier
tried as a war criminal for failing to adhere to the humanitarian standards contained in
General Order No. 100. The simple answer of "victor's justice" does not sufficiently
address the complexity of the decision to try Wirz and not others. Union occupation
policies and burnt earth tactics against Southern property and infrastructure have often
and inaccurately been compared to modem war crimes. While such practices were novel
at the time and condemned by the Confederacy, they were authorized by General Order
No. 100 and pale in comparison to permissible actions against enemy infrastructure found
96 Taylor, see Forward to the Laws of War, xvii.
97 United States House of Representatives, 40th Congress, 2nd Session, House Executive Document (The
Andersonville Trial), Vol. 8, n. 23 (1865), 19-20.
in modern norms of warfare. Despite the ludicrous claims of some apologists of the "lost
cause," there were no My Lai's perpetrated on the population of the Confederacy during
Sherman's March or anywhere else.98 Even American historian Charles Royster's recent
brutal depiction of Sherman stresses ""The actions of Sherman's men bore little
resemblance to the killing of civilians in twentieth-century war. Few if any writers have
contended that Sherman made those mass killings possible or necessary, that twentieth
century war would have taken a different course without Sherman's example."99
While the lack of war crimes prosecutions against United States soldiers can be
explained in terms of either a lack of evidence of criminal activity or an unwillingness of
a sovereign power to hold its own forces accountable for violations of the laws of war,
the question why the decision was made to try Wirz for war crimes and not other senior
Confederate leaders is more difficult to answer. On May 30, 1863, the Confederate
Congress issued a policy allowing the execution of U.S. Army officers commanding
black units. Subsequently, on August 12, 1863, Confederate Secretary of War James A.
Seddon sent a letter to Lieutenant General Kirby Smith (CSA) initiating the Trans-
Mississippi command policy to kill all blacks captured in uniform. Actual executions of
98 The most notorious example of falsely comparing Sherman's March to latter war atrocities is the habeas
corpus ruling by Judge Robert Elliot in a district court in Columbus Georgia in which Sherman's march
was used as an historical example to justify his ruling that U.S. Army Lieutenant William Calley should be
freed from confinement for the murder, rape, sodomy, and mutilation of over 500 noncombatants at My Lai
in Vietnam in 1968. See Michael Bilton and Kevin, Four Hours in My Lai (New York: Viking Penguin,
1992), 356. While there was an unquestionable massacre against non-combatants by Federal forces during
the period of the Civil War, it was not against citizens of the Confederacy. In November 29, 1864, the
Sand Creek or Chivington Massacre involved a slaughter of hundreds of friendly and disarmed Cheyenne
Indians in southeastern Colorado Territory by a force of 1,200 Federal militia under Colonel John M.
Chivington, a local Baptist minister. Regular Army forces present at the scene refused to participate.
Chivington escaped court-martial by leaving Federal service prior to military charges were prepared against
99 See Charles Royster's The Destructive War, William Tecumseh Sherman, Stonewall Jackson, and the
Americans (New York: Vintage Books, 1991; First Vintage Civil War Library Edition, 1993), 358.
African-American U.S. soldiers by Confederate forces occurred on June 7, 1863 at the
Battle of Milliken's Bend (Louisiana) under General Richard Tylor (CSA), April 12,
1864, at the Fort Pillow Massacre (Tennessee) under General Nathon Bedford Forrest
(CSA), on April 18, 1864, at the Poison Springs Massacre (Arkansas) under General
Samuel Bell Maxey (CSA), April 17-20, 1864, during the Confederate recapture of
Plymouth, N.C. under General R.F. Hoke (CSA), June 25, 1864, at the Battle of the
Crater (Petersburg, Virginia) under General William Mahone (CSA), and October 2,
1864, at the Battle of Saltville, Virginia under General Felix Huston Robertson, (CSA).
When the United States Army discovered that its own soldiers, those of African decent,
were being systemically murdered or enslaved upon capture, it chose not to retaliate in
kind. Rather, it prudently chose the option of discontinuing the practice of prisoner
exchange that disfavored the interest of the manpower and labor starved Confederacy
rather than implement its privilege of retaliation under Article 28 of General Order No.
This breakdown of the prisoner exchange led to the creation of one of the least
chivalrous realities of the Civil War: the prison conditions that took the lives of 60,194
prisoners of war, 30,218 in Confederate prison camps and 29,976 in camps run by U.S.
military authorities.100 The claim of victor's justice in the case of Wirz's conviction and
subsequent execution was posited by none other than former Confederate president,
Jefferson Davis --originally named as a co-conspirator with Wirz on the original draft
indictment and later dropped -who in a series on articles in 1890 claimed that the United
100 General F.C. Ainsworth, Chief of the Record and Pension Office, to James Ford Rhodes, June 29, 1903,
cited in James M McPherson, Battle Cry ofFreedom: The Civil War Era (New York, Ballantine Books,
1989: Oxford University Press, 1988) 802.
States Government was exclusively responsible for the condition at Andersonville, due to
its failure to continue the prisoner exchanges, and that conditions in Confederate camps
were no more inhuman than those in the north.101 The historian James McPherson, in his
seminal Battle Cry of Freedom, dismisses the often posited clam of equivalency made
after the war in defense of Wirz in reference to conditions of prisoners of war held by the
Confederacy and the United States by pointing to the fact that all northern prisons had
provided at least some type of shelter from the elements and that the twenty-nine percent
mortality rate (13,000 out of 45,000) at Andersonville dwarfed the mortality rates of any
northern prison camp.102
While Wirz's defense attempted to dispute the secondary charge of murder,
evidence that Andersonville was a de facto death camp was presented by fellow
Confederate officers and even Wirz's own defense witness, Father (later Bishop) Peter
Whelen.103 Wirz addressed the primary charge of conspiracy "to impair and injure and to
destroy the lives" of U.S. Army prisoners by the first modern use of the defense of
superior orders by claiming that as a "subaltern officer (he) merely obeyed the legal
orders of (his) superiors in the discharge of (his) duties" and that he could not" be held
101 Davis' articles in Belford's Magazine in January and February of 1890 was cited and summarized by
General Norton Parker Chipman in The Tragedy ofAndersonville: Trial of Captain Henry Wirz, The Prison
Keeper (Sacramento, CA: N.P. Chipman, 1911), 19-26. Chipman, the Judge Advocate who prosecuted
Wirz, wrote this work, at the behest of the membership of the Grand Army of the Republic, to respond to
the Davis articles. Subsequent pro-Confederate claims of moral relativity between U.S. and C.S.A. prison
policies and conditions can be found in Facts and Figures vs. Myths and Misrepresentations: Henry Wirz
and the Andersonville Prison (United Daughters of the Confederacy (UDC) Bulletin of 1921), 29.
Subsequently, the Georgia chapter of the UDC proclaimed Wirz a martyr and erected a monument,
originally within site of the graves of his victims and is still standing although the Georgia Legislature
refused- even at the height of southern anti-desegregation agitation in 1958, using state funds to repair the
102 McPherson, Battle Cry ofFreedom, 706 & 802.
103 Chipman, The Tragedy ofAndersonville, 22.
responsible for the motives that dictated such orders."104 Wirz's defense mirrored the
sentiments he expressed in a letter written upon his arrest at Andersonville on May 7,
1865 that he was "only the medium, or may I better say, the tool, in the hands of my
In response, General Chipman, Wirz' prosecutor, argued a theory of command
responsibility that anticipated by eighty years the position found in 1945 London Charter
for the establishment of the International Military Tribunal at Nuremberg: 106
A superior officer cannot order a subordinate to do an illegal act, and if a
subordinate obey such an order and disastrous consequences result, the
superior and the subordinate must answer for it. General Winder (Wirz's
direct superior) could no more command the prisoner to violate the laws of
war than could the prisoner do so without orders. The conclusion is plain,
that where such orders exist both are guilty. 107
Forty-six years later, Chipman admitted that he was directly ordered by the War
Department to remove the names of President Jefferson Davis, Confederate Secretary of
War James A. Seddon and other high Confederate officials as co-conspirators on the
indictment.108 Besides the obvious political expediency of this order, the case against
104 House Executive Document (The Andersonville Trial), 706.
105 Letter from Captain Henry Wirz, CSA, Andersonville, Georgia, May 7, 1865 to General J.H. Wilson,
U.S. Army. Reprinted in Friedman, The Law of War, 784-785.
106 Text of Article 8 of the 1945 London Charter: "The fact that the Defendant acted pursuant to order of
his Government or of a superior shall not free him from responsibility, but may be considered in mitigation
of punishment if the Tribunal determines that justice so requires." This article was applied by the
International Military Tribunal and in the subsequent Nuremberg trials to include The Hostage Case, The
Einsatzgruppen Case, and the Command Case. See Levie, Terrorism in War, 518.
107 House Executive Document (The Andersonville Trial), 773.
108 Chipman, The Tragedy ofAndersonville, 28.
Wirz' superiors was complicated by the death of his immediate superior, General John H.
Almost all the major issues generally associated with the American War Crime
Program of the Nuremberg era war surfaced during the Andersonville Trial, including
claims of victor's justice and ex post facto justice.110 The dual concepts of the command
responsibility and superior orders were central in the prosecution and defense of Major
Wirz. Just as in the case of subsequent prosecutions holding forth a strict level of
command accountability for war crimes, some have continued to question the
Andersonville Trial in terms of "law." 111 It is not the purpose of the present work to
present a legal treatise in defense of a stricter level of the command responsibility for war
crimes implied in traditional just war doctrine, General Orders No 100, and explicitly
posited by the prosecution during the trial. Regardless of the validity of the legalistic
criticisms of the Andersonville Trial, the doctrinal significance of such cases for the
American military profession is not diminished (italics mine). Seven out of eight of the
military panel that convicted and sentenced Wirz to be hanged were general officers. The
Secretary of War and the President as Commander in Chief upheld both the conviction
and sentence. The report of the trial was officially published and distributed by the U.S.
109 The other co-conspirators named in the final indictment, John H. Winder (deceased), Richard B.
Winder, Joseph Isaiah H. White, W.S. Winder, and R.R. Stevenson were not tried. A similar situation
occurred during the prosecution of the perpetrators of the My Lai Massacre in Vietnam after the death of
Colonel Frank Barker and the difficulties his death created for the prosecution of Barker's subordinates
(Captain Ernest Medina) and superiors (Colonel Oren K. Henderson, General Samuel Koster, and General
George H. Young).
110 Although the United States attempted to distribute General Orders No. 100 to Confederate forces,
applying its obligations to a Confederate Officer, after its explicit rejection by the Confederacy (see note
13), is open to criticism by those who claim such a process inherently creates law after the fact of the crime
or ex post facto.
111 As recently as 2000, Peter Maguire in his seminal Laws and War: An American Story (New York:
Columbia University Press, 2000), 40, called the Andersonville Trial a "dramatic spectacle of vengeance."
government. Whether are not the definition of command responsibility utilized during
the trial was based upon a proceeding comprised of "good law," it was and is doctrine.
The principle that there is an affirmative official duty to use force or coercion to
assist others as predicated and conditioned by the principle of necessity is found formally
in the foundational document of the modern laws of war, U.S. Army General Order 100.
Dr. Francis Lieber utilized the principle of necessity to reintroduce the basic principals of
Augustinian just doctrine into U.S. Army General Order 100, the foundational document
of the modern laws of war. The code's affirmative obligations to minimize human
suffering was enforced by the U.S. Army military tribunal that convicted and sentenced
to death Henry Wirz, the commandant of Andersonville Prison, for his failure in
addressing the inhuman conditions of Union prisoners during the Civil War.
U.S. Army General Order No. 100 was also a pivotal milestone in the
development of formal military doctrine in the American military profession. As a
representation of a major change in national strategy affecting the conduct of Union
forces, it provides the first example of a national operational capstone doctrine. As the
initial authoritative basis for a series of doctrinal publications on the laws of war that was
binding on all branches of the service, it was also the first major historical example of
As doctrine, it remains outside of the major traditions arising out of Post-
Westphalian legalism: political realism, legal positivism, and the neutral voluntarism
associated with 1864 Geneva Convention and the humanitarian law tradition of Dunant
and his ICRC. Finally, it was the product of those who possessed direct experience of the
reality of armed conflict; it consisted of an executive order by the commander in chief of
the armed forces to his commanding officers in the field; and it was intended to be
utilized primarily by operational military commanders rather than a legal manual for
THE DOCTRINAL DEVELOPMENT OF THE
AMERICAN MILITARY PROFESSION
I see many soldiers: would that I saw many warriors! "Uniform" one calls
what they wear: would that what it conceals were not uniform!1
-- Frederich Wilhelm Nietszche
Between the Civil War and World War II the process of the development of
military doctrine was formalized with the introduction of a formal publication system.
The period was characterized by contested visions military professionalism. Those
favoring a domestic democratic conception of military professionalism gradually
supplanted functionally aristocratic models of an officer corps associated with Prussia
Most discussions on the development of the military profession have centered on
a presumed "civil-military gap" in values, attitudes, and worldviews that have developed
between the military profession and civil society and especially on the political and
societal consequences resulting from such a gap. Rather than addressing whether
military policies and attitudes are either congruent or incongruent with civil society, this
study incorporates the assumption that neither formal nor informal norms are fixed or
uncontested. The point of departure for any new military doctrine is the doctrine that it
replaces or modifies. The specific subject of the present analysis is the changes and
consistencies in the development of American military doctrine in regard to preexisting
1 Frederick Nietzsche, Thus Spoke Zarathustra as found in Walter Kaufmann's translation in The Portable
Nietzsche, (New York: Viking, 1954) p. 159.
doctrine, specifically the evolution of formal doctrine from the promulgation of General
Order No. 100 during the American Civil War to the present.
The development of doctrine provides a historical record of the intellectual
foundation of the military profession in the United States. Although certainly affected by
external forces and political expediency, military doctrine is an internal system of
normative values. Therefore, the well traveled debate over the models of continuity
versus discontinuity between military and civilian professional values is pertinent to the
present study only so far as it relates to the refutation of the claim, in the case of
competing doctrines, that a particular contested doctrine is an external imposition on the
Constitutional Allegiance and the American Military Professionalism
The doctrinal significance of General Order No. 100 and the just war precepts
contained within it cannot be separated from the constitutional conflict that was
contemporaneous with its publication. The American Civil War was a referendum for and
by the American military profession on the meaning of allegiance. From 1790 to 1861,
the oaths that officers took upon accepting military commissions did not consistently
mention the constitution. This changed as the result of the American Civil War ending
with a decision in favor of those holding primary loyalty to the federal government and
its constitution as opposed to those holding primary loyalty to state governments and
their constitutions. This was subsequently formalized by legislation. In 1862, the
Radical Republicans controlling the U.S. Congress mandated that an officer's political
allegiance to the constitution was to be unqualified and specified by law. From 1862
onward, the words of the Presidential oath of office found in the U.S. Constitution,
"support and defend the Constitution of the United States," was incorporated into all
official oaths of office to include both the enlisted and commissioning oath still used to
Officer's Commissioning: I, do solemnly swear (or
affirms) that I will support and defend the Constitution of the United
States against all enemies, foreign and domestic; that I will bear true faith
and allegiance to the same; that I take this obligation freely, without any
mental reservation or purpose of evasion; and that I will and faithfully
discharge the duties of the office on which I am about to enter. So help me
Enlisted: I, do solemnly swear (or affirm) that I will
support and defend the Constitution of the United States against all
enemies, foreign and domestic; that I will bear true faith and allegiance to
the same; and that I will obey the orders of the President of the United
States and the orders of the officers appointed over me, according to
regulations and the Uniform Code of Military Justice. So help me God.4
Evocative of the fifth century just war maxims of St. Augustine exhorting Roman
soldiers to examine the moral foundation of their service and conduct, these oaths forced
individuals entering military service to personally acknowledge the basis of the authority
under which they entered into military service and source of the legitimacy of their
actions while in military service. As the oath requires allegiance to a particular
constitution, the political and ideological premises of this constitution, especially as it
was modified over the course and immediate aftermath of the American Civil War, on the
2 Edward M. Coffman in his authoritive article on the subject, disputes the contention that the Constitution
played a significant role in officers decision to fight for or against the United States and argues that the post
war allegiance oaths required by congress were a significant development in both military professionalism
and the American civil-military relationship. See Edward M. Coffman, "The Army Officer and the
Constitution" Parameters (September 1987), 2-12. Even Samuel P. Huntington, who held that Southern
culture was more facilitating of military professionalism, noted "On the one hand, the Southern officer's
political allegiance drew him to the Confederacy; on the other, his professional responsibility drew him to
the Union." See Huntington, The Soldier and the State: The Theory and Politics of Civil Military Relations
(Cambridge, Harvard University Press, 1957), 211-212.
3 Cited in Coffman, "The Army Officer and the Constitution," 5.
4 Most officers have taken this oath as an enlisted soldier or a cadet prior to their commissioning.
development of the American military profession is distinct from other contemporary
armies who pledged their allegiance to other arrangements of political authority. The
formal basis of military allegiance in the United States, in contrast to the major European
powers of the day, was also institutional rather merely national in an organic sense.
However, the end of the Civil War did not result in a consensus regarding military
professionalism and the nature of its historical development. Different interpretations
and views on the institutional lessons of the Civil War and the efficacy of using foreign
models of military professionalism, specifically that of Prussia, as a model for
institutional reform divided those who would have the most influence over the
establishment of future military doctrine in America.
The Prussification of the American Military Professionalism
The centrality of an individual affirmation of duty in the oaths of political
allegiance resulting form the Civil War resonates well with both Francis Lieber's General
Order No. 100 and the traditional just war doctrines contained within it. This, however,
conflicted with the some general assumptions associated with another Prussian, Carl von
Clausewitz. American scholars and members of the American military profession have
utilized Clausewitz in particular and the Prussian military tradition in general to ground
theories of military professionalism that contrast strikingly with the democratic and just
war doctrine put forward by Lieber.
It is ironic that the two key individuals associated with such disparate martial
legacies at one point shared the same uniform and campaign. Clausewitz, the future
author of a book that would serve as scripture for the political realists of late twentieth
century American military and diplomatic officialdom, was serving as a staff officer in
the rear guard of the Prussian forces seeking to cut off the French forces trying to
reinforce Napoleon at Waterloo. A few miles away, the future author of General Order
No. 100, Francis Lieber, a Prussian enlisted soldier, lay wounded near death. Many of
the philosophic inclinations of Clausewitz were the reverse of Lieber's. In fact, their
contrasting views of the nature of war would mark a key point of divergence between the
informal and formal norms of the American military profession.
Clausewitz contra Lieber (Political Realism vs. Political Ethics)
Clausewitz is only known to history because the French Revolutionary Army
followed the common customs and usages of war of the time in granting him quarter and
providing him medical care after he fell wounded in an earlier battle in 1806.5
Following his recovery and parole, Clausewitz joined Field Marshals August Wilhelm
Gneisenau and Gelhard Johann von Scharnhorst in modernizing and reforming the
defeated and antiquated Prussian Army. Being the most politically conservative and anti-
revolutionary of the Prussian military reformers, Clausewitz discarded his uniform and
donned a Russian one in 1812 rather than fight for Napoleon, not returning to Prussian
service until his sovereign had discovered the error of his ways by turning on the French
Emperor after his defeat in Russia. After his retirement, Clausewitz put down his
military insights and observations in a book that, after the Bible, would end up being one
of the most selectively read texts in history. In 1832, he died in the midst of a major
revision of his seminal On War, completing only its first chapter. 6 Although he died in
5 Two recent biographies of Carl von Clausewitz include Raymond Aron's Clausewitz, the Philosopher of
War (Englewood Cliffs, New Jersey: Prentice-Hall, 1985) and Michael Howard's Clausewitz (Oxford:
Oxford University Press, 1983).
6All references to On War (Vom Kriege, 1832) are based on the edition and translation by Michael Howard
and Peter Paret (Princeton, NJ: Princeton University Press, 1976), Everyman's Library 1993 edition. As
far as inspiring scholarly textual study, the reception of this new translation of Clausewitz by the post
relative obscurity, the sponsorship of his ideas by Field Marshals Helmuth von Moltke
and Colmar von der Goltz in their late nineteenth century efforts to prepare the new
nation of Germany for total war turned Clausewitz, for the first time, into a military icon.
Clausewitz's influence in Europe rose steadily until this ideal of total war was
experienced first hand by Europeans during the First World War.7
Aside from the many questionable historical processes for which he has been
either blamed or credited, it is fairly incontrovertible that, according to Clausewitz, the
nature of war was intrinsically violent, political, unpredictable, and resistant to
positivistic scientific systematization. While an in depth comparison of classical
Clausewitzian and neo-Clausewitzian theory is beyond the scope of this work, many neo-
Clausewitzian writers simply supply critiques of past military actions utilizing relatively
opportunistic selections from Clausewitz's lexicon of themes.8 Naturally, neo-
Clausewitzian writers, by responding to their own Zeitgeist, the historical events and
conditions of their own times, take Clausewitz's ideas out what was clearly a specific and
limited historical context.
For someone with no formal university training, the philosophical influences on
Clausewitz were considerable. His posited dichotomy between absolute war and actual
Vietnam War American military can only be compared to the reception in the English speaking world of
the King James Bible in the Sixteenth Century.
7 Major works of Clausewitz criticism published after World War I include B. H. Liddel Hart, The Ghost of
Napoleon, (London: Faber & Faber, 1933), J.F.C Fuller, The Reformation of War_(London, Hutchinson &
Co., 1932), and Generaloberst von Seeckt, Gedanken eines Soldaten (Leipzig: v. Hase & Koehler, 1935).
8 Antulio J. Echevarria reviewed five such comparisons between the works of Clausewitz and the neo-
Clausewitzians by Werner Hahlweg, Peter Paret, Michael Howard, Jehuda Wallach, and Ulrich Marwedel
and summarized that the neo-Clausewitzians oversimplify Clausewitz into four narrow themes: "1) the uses
and limitations of theory; 2) the impact of psychological and moral forces on war; 3) the importance of
striving for a decisive battle; and, 4) the superiority of a strategy of annihilation." See Antulio J.
Echevarria II, "Borrowing from the Master: Uses of Clausewitz in German Military Literature before the
Great War" in War in History, 3 (July 1996): 274-92.
war places him in the idealist tradition of Immanuel Kant and his reification of the nation
state reflects the influence of Georg Friedrich Hegel.9 In that he considered some
societies more naturally virtuous than other, Clausewitz was completely Aristotelian in
his views on ethical or humanitarian conduct in warfare. For Clausewitz, normative
patterns of humanitarian conduct in war were societal rather than professional:
If wars between civilized nations are far less cruel and destructive than
wars between savages, the reason lies in the social conditions of the states
themselves and in their relationship to one another. These are the forces
that give rise to war; the same forces circumscribe and moderate it. They
themselves however are not part of war; they already exist before the
fighting starts. To introduce the principle of moderation into the theory of
war itself would always lead to logical absurdity. 10
The above passage represents the two basic principles of neo-Clausewitzian
realism: (1) war itself is amoral in its nature and (2) war is conducted for, by, and in the
sole interest of nation states. While Clausewitz discussed the moral nature of war, it was
in terms of the non-material aspects such as morale and genius. Unlike Lieber and
Augustine, Clausewitz separates justice and morality from warfare. Like Thomas
Hobbes, and Niccolo Machiavelli before him, his works are addressed to those working
on the behalf of a self interested nation state in a zero sum competition for adjustments in
9 The most substantial treatment of the influences of German idealist philosophy on Clausewitz in found in
Aron's Clausewitz, the Philosopher of War, 223-232. Clausewitz's conception of 'absolute war' has been
described a "Platonic ideal" outside any reference to German idealist philosophy. See Howard's
Clausewitz, 49. While contemporary critics of Clausewitz stress his idealism in his characterization of
'ideal' or 'absolute' war, his contemporary apologists minimize it. See John Keegan, A History of Warfare
(New York, Knopf, 1993), 16-21 for an example of the former and Bernard Brodie's introductory essay,
"The Continuing Relevance of On War," to On War, 1976 (Vom Kriege, 1832), 52-53 for an example of the
latter. Clausewitz is not alone among those considered to be political realists that have predilections
toward German idealist philosophy. For the influence of Hegelian idealism on Hans Morgenthau, See
Michael W. Doyle, Ways of War and Peace (New York: W.W. Norton & Company, 1997), 106n.
10 Clausewitz, On War, 84.
the balance of power at the expense of other nation states in which no other justification
is required other that that of raison d' etat. 1
Clausewitz, however, not translated into English until 1873, did not became a
formal influence over American military thinking generally until the advent of the Cold
War and specifically with the so-called Clausewitzian renaissance after the American
military defeat in Vietnam. Therefore, it is historically problematic to apply this "'neo-
Clausewitzian" Weltanschauung, associated with so many contemporary military analysts
and political pundits, as a primary direct influence on the development of American
military professionalism in the late nineteenth century. 12 However, since Clausewitz was
one of the major reformers of the Prussian military, a short examination of his actual
writings is warranted in connection with the general influence Prussian military reform
exerted on the development of American military doctrine in juxtaposition to the
continuing doctrinal significance of General Order No. 100.
Unlike Lieber, Clausewitz wrote a code for statesmen or heads of states, not only
for soldiers, using his direct experience of war to integrate his personal life experiences
with selected historical references. Also unlike Lieber, Clausewitz and his Napoleonic
contemporaries were fixated on conventional warfare between large regular military
formations. On the other hand, the genesis of Lieber's code, like most doctrinal
1 Doyle, War and Peace, 19-28.
12 Works I consider belonging to this neo-Clausewitzian consensus include, but are not limited to
Huntington's The Soldier and the State, Henry A. Kissinger, Nuclear Weapons and Foreign Policy (New
York, Harper and Brothers, 1957), Harry G. Summers, Jr. On Strategy: A CriticalAnalysis of the Vietnam
War (Novato, CA, Presidio Press, 1982). For a discussion of how Clausewitz's direct influence on the
American military profession intensified after the American defeat in Vietnam, see editor's introduction to
Clausewitz andModern Strategy, ed. Michael Howard (London: Frank Cass & Co., 1986), 9. This book is
a collection of presentations on an international conference on Clausewitz held at the U.S. Army War
College in Carlisle Barracks, Pennsylvania in April 1985. The conference itself is direct evidence of the
growing influence of Clausewitz over the American military profession.
developments, was an effort to address contemporary doctrinal deficiencies. Lieber was
specifically tasked to address the aspects of war -- such as constabulary functions and the
handling of irregular forces -- that have historically constituted the U.S. Army's most
common historical activity, although they are activities that American military
professionals have historically tried to avoid or minimize, albeit unsuccessfully.
The strongest consistency between Lieber's and Clausewitz's view on war is the
supremacy of political over purely military ends. In his most famous dictum, Clausewitz
wrote "that war is not merely an act of policy, but a true political instrument, a
continuation of political intercourse, carried on by other means."13 In General Order No.
100, Lieber appears to have paraphrased Clausewitz: "war has come to be acknowledged
not to be its own end, but the means to obtain the great ends of state."14 This congruity
between Lieber and Clausewitz in acknowledging political supremacy over the military
does not extend to the self-proclaimed American heirs of Clausewitz. In fact, as the
particular form of neo-Clausewitzianism that would take hold in America would turn
Clausewitz on his head by advocating a de facto political deference to military ends in
policy and, thereby, directly contradict not only Clausewitz, but the tradition of both
General Order No. 100 and the institutionally based political allegiance mandated in the
soldiers' and officers' commissioning oaths resulting form the Civil War. This reversal
of Clausewitz's position of political supremacy, for the purposes of this study, is one of
the primary points of departure between classical and neo-Clausewitzianism.
13 Clausewitz, On War, 99.
14 General Order No. 100, Article 30.
Emory Upton's Love Affair with Prussia
Although the popularity of Clausewitz among American military professionals is
understandable, its historical reach is limited. Clausewitz did not have a direct individual
impact on the development of the American profession during its most important period
of development between the Civil War and culmination of World War II. The basing of
the impetus of military professionalism in America on Clausewitz, as distinct from basing
it on the Prussian military reformers in general, is just bad history. It was not through
Clausewitz, but the French Antoine Henri, Baron de Jomini, that Napoleonic strategy was
conveyed to America. The reason for this was that Jomini's writings were clearer and
more understandable than Clausewitz' classic.15 Clausewitz' influence on the American
military between the Civil War and the Second World War can only be taken in
conjunction with the nineteenth century Prussian military in general; Clausewitz can at
most be considered as an usually un-cited source for a view of military professionalism
that has played more of an informal, rather than formal, role in the development of
American military professionalism until America's defeat in Vietnam.
This is at odds with the premier theoretical work of American military
professionalism, Samuel P. Huntington's The Soldier and the State. Huntington argues
that modern military professionalism was spawned in post-Napoleonic War Prussia and
epitomized by the theories of Clausewitz. Accordingly, prior to this, America could only
claim to possess a proto military professionalism and this was to be found mainly in the
slave holding south that was embodied in the efforts toward ante-bellum military
15 Russell F. Weigley noted in The American Way of War that Clausewitz' writings were, compared to
Jomini's, "difficult, circumlocutory, often apparently self-contradictory." See The American Way of War, A
History of United States Military and Policy (Bloomington: Indiana University Press, 1973), 82 & 211.
professionalism initiated by the policies of Secretary of War John C. Calhoun. The
greatest weakness of Huntington's historical thesis is the absence of documentation
concerning how the culture of professionalism migrated from Prussia to the United
As Clausewitz could not be historically credited for the transplantation of military
professionalism from Prussia to the United States, the anointed mantle usually falls on the
shoulders of Major General Emory Upton. After serving as commandant of the U.S.
Military Academy from 1870-1875, Upton was sent by the Secretary of War on a tour of
Europe in search of military organizational models worthy of imitation. Four years after
the conclusion of the Franco-Prussian War and the creation of a new German empire, the
task of locating the belle of the ball was hardly difficult. Upton's admiration for the
Prussian / new German military reinforced his preference for smaller more professional
armies over larger mass armies, a preference developed during his service in the
American Civil War. Consequent to Lincoln's re-characterization of the war from a
limited war to preserve the Union to a national war of emancipation, Upton was highly
critical of what he considered the deficiencies in the Union Army resulting from the
political interference of civilian leadership and the appointment of non-career officers to
major commands. The preeminent military historian Russell F. Weigley credits Upton
with the ominous distinction of first asserting the requirement for national policy to
conform to military imperatives, rather than the other way around. Weigley wrote that
Upton "argued that all the defects of the American military system rested upon a
fundamental, underlying flaw, excessive civilian control of the military" and that, by
16 Huntington's The Soldier and the State, 143-62 & 172-77.
"proposing a military policy that the country could not accept." Consequently, Weigley
credits Upton with causing lasting damage to the Army resulting from the establishment
of a model of civil-military relations that emphasized antagonism over accommodation to
civilian society. 17
Upton's choice of Prussia for a model for military professionalism was not
without precedence because the American military already possessed a genuine Prussian
heritage since the Revolutionary War. The legacy of Prussia precedes the advent of the
Prussian military reformers of the Napoleonic period. In 1778, Frederick William von
Steuben arrived at the Valley Forge encampment of the American Continental Army with
the assignment, arranged by Benjamin Franklin in Paris, to provide a system of drill and
discipline based on a model other than that of the British enemy. Drawing on his service
in the army of Frederick the Great, Steuben drafted his Regulations or Blue Book that
established a uniquely American manual of arms that is nominally utilized to this day.
However, Steuben's legacy was confined to drill and not to general or "keystone"
doctrine and his military experience predated the Napoleonic era Prussian military
reforms later exalted by Upton.
Upton's admiration for the Prussian institutions resulting from the reform period
was generalized; his writings contain no systematic analysis of the writings of the
Napoleonic War era military reformers. Upton's position on the connection between
political ends and military action was the opposite of Lieber and Clausewitz, both sharing
the honor of not being cited in his work. Specifically, it was the ideas of Lieber's
17 Major Wallace E. Walker, USA, "Emory Upton and the Army Officer's Creed" Military Review (April
1981), 65-68, and Russell F. Weigley, History of the United States Army (New York: Macmillan, 1967),
279 & 281.
archrival, John C. Calhoun, which Upton drew as a base for his proposal for an
expandable army.18 In a time of war such an army would be comprised of personnel
from the regular army, national volunteers, and the militias who would be "regulars in
drill, discipline, and courage" and commanded only by professional soldiers.19 Taking
his own life in 1881, Upton despaired of ever seeing an expandable regular army free of
civil interference or his seeing ideas officially endorsed on published by the Army.
However, Upton left an unfinished manuscript, posthumously published as The Military
Policy of the United States, which was unofficially disseminated among the officer corps.
However, it generated enough support and opposition to facilitate the creation of the first
official keystone doctrine since the promulgation of General Order No. 100.20
One doctrinal specialist who wrote in opposition to Upton was Major Arthur L.
Wagner, U.S. Army, an Instructor in the Art of War at the U.S. Infantry and Cavalry
School at Fort Leavenworth, Kansas. In 1866, Wagner wrote a study that strongly
criticized the Prussian military for ignoring the lessons concerning mass armies during
the American civil war. Wagner argued that foreign doctrine, especially Prussian
doctrines, must cede precedence to the Republican forms of a distinctly American civil-
military relationship.21 Wagner's major work, Organization and Tactics, divided the Art
of War into two major divisions: (1) strategy, the movement and disposition of an army
in a "theater of operations," and (2) tactics, the movements of soldiers on a battlefield.
18 Weigley, History of the United States Army, 277.
19 Bvt. Maj. General Emory Upton, USA, The Military Policy of the United States, 4th Impression
(Washington D.C.: Government Printing Office, 1917), viii & xi.
20 For a discussion of foundational or "keystone" doctrine, see Introduction, n. 4.
21 For a discussion of Wagner's criticism of the Prussian Military tradition, see Kretchik, "Peering Through
the Mist," 88-92.
Calling Upton's focus on drill and discipline to mind, Wagner felt that "it was not
sufficient that an army be composed of intelligent, well-instructed, brave, and obedient
soldiers, well armed and equipped;" he also considered drill as "merely one of the means,
not the end" of military discipline. 22 Wagner, in that he felt that there are too many
diverse elements in war that keeps the art of war from becoming a science based on
universal laws, was probably more familiar with the actual writing of Clausewitz than
Upton, who believed in the existence of laws that have been in operation throughout
American military history. For Wagner, the art of war was a human science rather than
an exact science.23
Wagner's greatest difference with Upton was on the relative effectiveness and
discipline of the republicanized United States Army during the Civil War as compared to
that of contemporary professionalized European armies, Wagner favoring the former with
Upton favoring the latter.24 Wagner, unlike Upton, received official endorsement for his
doctrinal positions. In 1897, the second edition of Wagner's Organization and Tactics
contained an official imprimatur from the Adjutant-General's Office and was officially
recommended by the Headquarters of the Army for officers undergoing examination for
promotion, and contained a preface written by the Commander of the U.S. Infantry and
Cavalry School, the direct precursor to the Command and General Staff School. It was
22 Wagner, O o":,,i:,. ', and Tactics, 2nd ed. (Kansas City, Mo.: Hudson-Kimberly Publishing Co., 1897),
23 Upton, in his criticism that American "have no military policy", and that "Laws whose operation have
been the same in all our wars" can be utilized to systemically achieve the wisest policy possible. See
Upton, The Military Policy of the United States, xii. Contrarily, Wagner noted that as "many diverse
sentiments can influence the same army," "knowledge of human nature is half of the science of war." See
Wagner, O,,,,i:.,,,.. and Tactics, 46, 49.
24 Wagner, O, ,,,ir,. and Tactics, 43-44.
not until twenty-three years after his death that Upton's Military Policy of the United
States was officially published by the Army and, even then, only with a tentative
endorsement of its contents.
While the works of Upton and Wagner made only modest headway providing a
doctrinal foundation for the military profession on land, Captain Alfred Thayer Mahan
supplied an intellectual rationale for American naval and foreign policy that would be
utilized though the twentieth century. Unlike the Army, the Navy already possessed a
functional War College by 1890, the year Mahan, a faculty member of the Naval War
College, had his lectures published as The Influence of Sea Power on History, 1660-1783.
Unlike Upton, Mahan founded his naval worldview on the strategy of Jomini, rather then
Clausewitz or other Prussian military reformers, and recommended Great Britain, rather
than despotic Prussia, as a historical model for policy as America assumed its role as an
imperial world power.25 The contrast between the relative level of professionalism
existing between America's naval and ground forces was clearly demonstrated in
America's first major overseas military intervention.
Elihu Root and the Birth of Military Professionalism
A year after America's sloppy victory in the Spanish American War (1898),
President William McKinley appointed Wall Street lawyer Elihu Root to be his Secretary
of War to clean up the military mess in the newly acquisitioned Philippine Islands
occupied by U.S. Marine and U.S. Army ground forces. From 1899 to 1904, Root
conducted the most extensive military reform in American history prior to the
reorganization of the military under General George C. Marshall during the Second
25 Weigley, The American Way of War, 174, 177.
World War. He reorganized the administrative system of the War Department and
modernized promotions. He carried out many policies envisioned by Upton including the
foundation of the War College, creation of a general staff, and increased federal control
over the National Guard. Root also was forced to address the fact that Army's
performance in the Spanish-American War and the subsequent Philippine Insurrection
(1899-1906) exposed an army in doctrinal crises.
The major activity of the Army since the Civil War had been constabulary
functions in the South during Reconstruction and on the western frontier. Morris
Janowitz, an early critic of the normal theory of civil-military relations, argued that,
although such functions have always been a persistent activity for regular military forces,
they have always been a source of doctrinal neglect.26 With its first regular military
action in thirty-four years, the U.S. Army's performance, while victorious, was
disappointing. Despite the U.S. Army's wealth of historical experience with such
operations, American forces were unable to conduct disciplined constabulary functions
during the American occupation of the Philippines following the war. The worst incident
followed a massacre of 59 Americans at Balangiga on the island of Samar. Marines
under the command of U.S. Army General Jacob F. Smith, an officer who had
participated in the Wounded Knee Massacre of 1890, engaged in a genocidal riot that left
165 villages burned and thousands of Philippine murdered, the majority of which were
26Janowitz in the conclusion of The Professional Soldier (1960) insisted "the worth of the military
profession has been deeply rooted in the importance of its non-military functions." See The Professional
Soldier: A Social and Political Portrait, (Glencoe, Illinois: The Free Press, 1960), 438.
27 Marine Major Littleton Waller reported that Smith ordered him to kill "everyone over ten years old." See
Maguire, Laws and War, 60.
On February 21, 1903, seven months after the court martial of General Smith for
the conduct of his forces on Samar, Root laid the cornerstone of the Army War College in
Washington. Root used this occasion to deliver a eulogy for Upton and his quest for
greater professionalism of the American military, which included the establishment of
Prussian-inspired staff schools and war colleges.28 A year later, Root agreed to the
official publication of an edited version of Upton's Military Policy of the United States.
However, in Root's preface to the document, he gave only partial endorsement to
Upton's ideas. After pointing out that many of the Upton's concerns had already been
addressed, Root pointed out that Upton failed "to appreciate difficulties arising from our
form of government and the habits and opinions of our people" and that Upton's views
were "colored by the strong feelings natural to a man who had been a participant in the
great conflict of the civil war."29
Root was well aware of great divisions among officers during the Civil War
between regular West Point trained officers like Upton and citizen soldiers elected to
their commissions by their men or politically appointed. At the center of this controversy
was General George McClellan who was first relieved as General in Chief after the
failure of the Peninsula Campaign in 1862, later reinstated commander of the Army of
the Potomac, and relieved for the final time a few months later after failing to follow up
the Union victory at Antietam. The traditional depiction of McClellan's action and his
removal as a controversy over civilian control of the military is misleadingly one-
dimensional. While McClellan strongly resented the interference in military affairs by
28 Roots address included in his preface to Upton's Military Policy of the United States (Washington:
Government Printing Office, 1904), iii.
29 Ibid., iv.
the Republican Congress and President Lincoln, a resentment shared by Upton,
McClellan held his military superiors in the same contempt as his civilian superiors; in
particular, he did not hesitate going over their heads to civilians as in the case of
Winfield Scott and Henry W. Halleck, his predecessor and successor, respectively, as
general in chief.
It was not the military or civilian character of his superiors that McClellan
objected to; rather, it was the change in war aims from a smaller more traditionally statist
war aim to preserve the Union to a larger ideological war of emancipation. To
paraphrase Clausewitz, McClellan would have no part of a war that was the continuation
of policies he did not agree with. These policies would soon be definitely expressed in
the Emancipation Proclamation and General Order No. 100, the later the initiative of
Halleck, his general in chief. 30 While it would be unfair to call Upton a simple
McClellanite, Upton clearly shared McClellan's opposition to the influence of the
Lincoln administration and the Republican congress on the conduct of the war. In
chapter 25 of his Military Policy, Upton offers sympathetic criticism of McClellan's
civil-military decisions in much the same manner that Huntington would address
MacArthur's actions in Soldier and the State following President Truman firing of that
general in 1951.31 While Upton admitted to McClellan's making some errors, he
definitely did not support the criticism of McClellan by those civil and military leaders
30 While McClellan called President Lincoln a "gorilla," he called Scott a "perfect incubus" who is either a
dotardd or a traitor" and demanded that both Halleck and Secretary of War Stanton be removed after they
criticized his conduct toward the enemy. Quoted in McPherson, Battle Cry ofFreedom, 360 & 569.
Historian James McPherson also emphasized the policy differences over emancipation as being key to the
motives of Stanton, Halleck, and Lincoln removing McClellan, see Battle Cry ofFreedom, 502-506.
31 Upton, Military Policy. 384-387. For Huntington's sympathetic approach to MacArthur's dismissal, see
Soldier and the State, 367-389.
holding a constitutional view in reference to civilian control of the military.
Additionally, Upton, like McClellan, opposed the change in war aims involving the civil
war becoming a larger war of emancipation as was to be clearly defined in General
Order No. 100, a document conspicuously unacknowledged and un- cited by Upton.32
Root, conversely, was acutely aware of General Order No. 100 during his tenure
as Secretary of War. In 1901, an American general publicly announced that the
insurgents in the Philippines had violated twenty-six articles of the "Lieber Code" and
claimed that the United States was justified in not according such belligerents the
protections accorded lawful combatants according to the most controversial doctrine
contained in General Order No. 100, the doctrine of reprisal. Root did not agree.
Although he accepted in general Lieber's principle that soldiers fighting an enemy, itself
engaging in unlawful conduct, may respond in a manner that would not otherwise be
sanctioned against an enemy fighting according to the customs of war, Root cabled that
the extreme form of retaliation being carried out by American forces in the Philippines
was beyond any justification. Both General Jacob Smith and his direct subordinate,
Marine Major Littleton Waller, unsuccessfully tried to use the Lieber's doctrine of
retaliation to justify the outrages on the island of Samar during their court-martials. Root
was widely criticized for being both too soft and too hard in what he admitted was the
superficial war crimes trials of American officers in Manila.33 On July 21, 1902, Root
32 Upton wrote: "Since the Rebellion, with a fatuity pregnant with future disaster, we settled down to the
conviction that out total neglect of military preparation, our defeats, our sacrifices in blood and treasure,
were the predestined features of a war protracted through four long years, in order that the minds of the
people might be prepared for the extinction of slavery. These views, so comforting now, were not held
during the war." See Upton, Military Policy of the United States, 385. Article 24 of General Order No.
100 addresses slavery and the war.
3 Upon hearing reports of the exaggerated level of reprisals under General Smith, Root cabled that
although soldiers "should occasionally regardless of their orders retaliate by unjustifiable severities ...
responded to criticism by General Granville Dodge who considered Root's decision to
court-martial American personnel as being based on a naive understanding of the reality
I think if you could read the testimony in the Waller case (who was tried
prior to General Smith and established the evidentiary record subsequently
used against Smith) you would change your views. I had very much the
same views of the case as you express, but careful examination of the
entire record and evidence extremely distressing to me.34
The suspect use of the "Lieber Code" to defend American atrocities in the
Philippines by war crimes defendants did not dampen Root's enthusiasm for General
Order No. 100 and its author, Francis Lieber. Five years after the Manila court-martials,
Root, as Secretary of State, directed the American delegation to the second Hague
Conference to radically expand the reach of laws of war. Root considered the "Lieber
Code" as the source that "made possible the success of the Hague Conferences.35 During
the second Hague Conference, Root's ambition to expand the reach of international law
at the expense of traditional prerogatives of the nation state was frustrated by hispetit
noire, Germany. It was probably Root's anti-German antagonism that accounts for his
partiality for the anti-Prussian Lieber over the pro-Prussian Upton. Root took the
occasion of the presidential address at the seventh annual meeting of the American
Society of International Law in 1913 to celebrate the fiftieth anniversary of adoption of
nothing can justify or will be held to justify, the use of torture or inhuman conduct on the part of the
American Army." In a personal letter to Senator Henry Cabot Lodge, Root criticized the tactic of utilizing
the General Order No. 100 to justify the disproportional reprisals in the Philippines. See citations of Root
as found in Maguire, Law and War, 62, 66, & 69.
34 Letter to General Genville Dodge, July 21, 1902, cited in Ibid., 308, n.88.
35 Elihu Root, "Francis Lieber: Presidential Address at the seventh annual meeting of the American Society
of International law, Washington, D.C., April 24, 1913" inAddresses on International Subjects, ed. Robert
Bacon & James Brown Scott (Freeport, New York: Books for Libraries Press, 1916, reprinted 1969), 103.
the "Lieber Code." In his eulogy of Lieber, Root described Lieber as a German whose
love of country urged him "to the support of a government which the love of liberty
urged them to condemn" in that the "people of Prussia were held in the strictest
subjection to an autocratic government of inveterate and uncompromising traditions."36
In Root's presidential address honoring Lieber, there was nothing of the qualified
endorsement so obvious in Root's eulogy for Upton ten years earlier. Although, as
Secretary of War, Root is credited for implementing many of Upton's recommendations
for the professionalizing the American Military, Root kept his distance from the Uptonian
celebration of Prussian efficiency and professionalism at the expense of democratic
principles. Root closed his presidential address with the following:
It stirs the imagination that the boy who lay wounded on the battlefield at
Namur for his country's sake and who languished in prison for liberty's
sake and who left his native land that he might be free, should bind his life
into the structure of American self-government and leave a name honored
by scholars and patriots the world over. If our Society, at once national
and international, were about to choose a patron saint, and the roll were to
be called, my voice for one would answer "Francis Lieber."37
The Formalization and Specialization of American Military Doctrine
Except for General Order No. 100, the creation of military doctrine in the United
States, prior to the twentieth century, was decentralized and informal. Except for the
edited doctrinal writing of Emory Upton, and Arthur L. Wagner, doctrinal texts utilized
by the American military during the nineteenth century were commercially published,
sometimes with and sometimes without an imprimatur. As the American military
36 Ibid., 96. Four years prior in a letter to Andrew Carnegie, called Germany "the obstacle to the
establishment of arbitration agreements, to the prevention of war, to disarmament, to the limitation of
armaments, to all attempts to lesson the suspicions and alarm of nations toward each other, is Germany,
who stands, and as persistently stood since I have been familiar with foreign affairs, against that kind of
progress." Cited in Maguire, Law and War, 69.
7 Elihu Root, "Francis Lieber," 103.
profession underwent formalization and specialization in the early twentieth century, so
did American military doctrine.
Field Service Regulations
With the publication of Field Service Regulations in 1910, the Army under Root's
successor as Secretary of War, William H. Taft, introduced what was to the first formal
series of doctrinal publications. This document served simultaneously as a "capstone"
publication, officially articulating national war fighting doctrine, and a "keystone"
publication, providing a doctrinal base for all other supplemental doctrinal publications.38
This was no product of a single author with an official imprimatur indicating official
endorsement; the manual was eventually the responsibility of a Field Service Regulations
Board charged with drafting a centralized and current warfighting doctrine. It was the
first example since the promulgation of General Order No. 100 during the civil war that a
single volume could be described as the official military doctrine of the United States.
Seven new editions of the series would be issued between 1908 and 1941 when Field
Manual 100-5, Operations, would supercede the series. The FM 100-5 series would
remain the primary keystone doctrinal series after the creation of the Department of the
Army by the National Security Act of 1947 until the end of the twentieth century when
the Army's traditional role as the major developer of keystone doctrine was superceded
by the Department of Defense (DOD).39
38 Department of War, Field Service F. ih,/.r,. ,, 1905 (Washington: General Staff, 1905). Capstone
doctrine is the highest category of doctrine publications in the "hierarchy of publications" that link doctrine
to national strategy and the guidelines of other government agencies to include other members of
international alliances and coalitions. Keystone doctrinal publications provide the foundation for a series of
doctrine publications in the hierarchy of publications. See JP 1-02, Department of Defense Dictionary of
Military andAssociated Terms, 62, 82.
39 This DOD assumption was accomplished under the incomplete and belated implementation of the
Goldwater-Nichols Department of Defense Reorganization Act of 1986. In 2001, Field Manual 3-0
Lieutenant Colonel Walter Kretchik of the U.S. Army Command and General
Staff College, a leading expert on the historical development of Army doctrine,
considered the first edition of Field Service Regulations as containing the ideas of both of
the major post Napoleonic military theorists, Jomini and Clausewitz, as "transmitted
though the writings of Henry W. Hallack, Emory Upton, and Arthur L. Wagner."40 The
legacy of Francis Lieber also figured prominently in the manual. The entirety of article
XII in the first edition of the manual consisted of a reprint of General Order No. 100.
However, the General Order No. 100 's position in subsequent editions became
increasing peripheral. By the 1914 edition of Field Service Regulations, only a summary
of the Lieber's provisions was included in an appendix entitled "Extracts to from
International Conventions and Conferences."41
In both editions promulgated before and after the experience of the American
Expeditionary Force in the First World War, the Field Service Regulations emphasized
decisive offensive operations over passive defensive tactics. The contemporaneous
reaction to the recent experience of static trench warfare in Europe reinforced the
traditional American doctrinal emphasis on affirmative decisive action going back to the
pre-civil war writings of Henry Wager Halleck and also found in the traditional just war
requirement for a high probability of success and the principle of military necessity found
in General Order No. 100, of which Halleck was the major sponsor. Major General J. L.
Hines, Acting Chief of Staff, in his preface to the 1923 edition of the Field Service
formally superceded the FM 100-5 series in conformity with the joint (service) numbering system.
Department of the Army, Field Manual 3-0, Operations. (Washington, D.C.; Government Printing Office,
2001, accessed 1 March 2003); available fom Illip \ \ \ .adtdl.army.mil/cgi-bin/atdl.dll/fm/3-0/toc.htm.
40 Krtetchik, Peering Through the Mist, 99.
41 Department of War, Field Service ,'.,I ir,. i,, (Washington: General Staff, July 1, 1905), 190-204.