John Witt’s magisterial new book, Lincoln’s Code: The Laws of War in American History, appeared a few weeks ago, and Gary Bass has an enthusiastic review of it in yesterday’s New York Times Sunday Book Review. I am only about half-way through it, but Bass’ enthusiasm is entirely justified – it is a fabulous book and one that I think merits attention world-wide. Bass’ review-essay is also well worth the read:
Abraham Lincoln’s administration published a new fighting code for Union soldiers in 1863, which diffused far beyond American shores: to the Prussian Army in 1870, into the landmark Hague Convention in 1899, and even into the Geneva Conventions and the Nuremberg trials after World War II. Witt, a professor at Yale Law School, writes that it was Francis Lieber, the Lincoln team’s foremost wartime legal authority, who — trying to figure out how Union troops should treat Southern irregulars — came up with some of the defining features of soldiers that guided the Third Geneva Convention in 1949: wearing distinctive insignia identifying them as combatants; operating under a command structure; and following the laws of war.
“Lincoln’s Code” is both a celebratory chronicle of American lawmaking and a gruesome record of American wartime cruelty, from William Tecumseh Sherman’s rampage through Georgia and South Carolina to the Indian wars. In an effort to make sense of what animates the “world’s only military superpower” today, Witt looks backward: “From the Revolution forward, the United States’ long history of leadership in creating the laws of war stands cheek by jowl with a destructive style of warfare.”
Witt argues that Americans have been torn between “two powerful but competing ideals”: humanitarianism, which seeks to make war less awful through gentler rules; and justice, which demands victory in a righteous cause. Americans, he writes, have seen military law not just as an obstacle to effective fighting, but also “a tool for vindicating the destiny of the nation.”
Witt himself is a pragmatic type. While he admires much about the laws of armed conflict, he does so largely on the modest grounds that they can serve “as tools of practical moral judgment in moments of extreme pressure.” He is impatient both with skeptics who dismiss international law as rank hypocrisy, and with more aspirational legalists whose ideals are “so remote” from actual war-fighting that they make it “less likely . . . the laws of war will find traction in times of crisis.” He paraphrases Oliver Wendell Holmes Jr.: “The life of the laws of war has not been logic. It has been experience.”