War Is Hell, But Even Hell Has Rules: Military Necessity & Its Moral Limits Per the Lieber Code

War means killing, maiming, suffering and destruction. Abraham Lincoln knew this. In a July 1862 exasperated response to a Louisiana citizen who complained about the harshness of Lincoln’s war policy, Lincoln retorted: “would you prosecute it [the war] in future, with elder-stalk squirts, charged with rose water?”^[1]

Yet few would argue that the violence necessarily attendant to war must have some limit, lest the country descend into barbarism. The commander of the Army of the Potomac certainly thought so. In a pedantic July 7, 1862 letter presented to the President at Harrison’s Landing, Maj. Gen. George B. McClellan lectured Lincoln that the war “…should be conducted upon the highest principles known to Christian civilization… It should not be at all a war upon population, but against armed forces and political organization. Neither confiscation of property, political executions of persons, … or forcible abolition of slavery should be contemplated for a moment… [P]illage and waste should be treated as high crimes; all unnecessary trespass sternly prohibited, and offensive demeanor by the military towards citizens promptly rebuked.”^[2]

Meanwhile, McClellan’s rival Maj. Gen. John Pope even then was preparing to adopt a “hard war” approach, one expressly targeting civilians. A series of General Orders directed his men to “subsist upon the country” (i.e., Southern civilians) and retaliate against the populace for any sabotage in their midst, even without any proof of individual complicity. Pope even threatened to execute civilian rebel sympathizers found within his lines. Pope believed that such measures were justified by military necessity.^[3]

Thus, in later crafting his code Francis Lieber had before him sharply contrasting theories as to how the war should be conducted.^[4] As seen before, the Code’s Article 5 proclaimed that “To save the country is paramount to all other considerations.” But surely that did not mean that no restraints would be placed on the conduct of U.S. soldiers? This is how Lieber’s Code laid out the rule of what “military necessity” justified, and the limits of that doctrine.

Article 14.

Military necessity, as understood by modern civilized nations, consists in the necessity of those measures which are indispensable for securing the ends of the war, and which are lawful according to the modern law and usages of war.

Comment: This Article defines “military necessity” in broad terms, yet with reference to the “laws of war.” That body of customarily accepted principles included a variety of provisions limiting the application and targets of violence in war.^[5] As the Code put it in its Article 30, “the law of war imposes many limitations and restrictions on principles of justice, faith, and honor.”

Indeed, the Order under which Lieber was operating had instructed that the code of regulations being crafted must stay within those limits of conduct “as authorized by the laws and usages of war.”^[6]

Article 15.

Military necessity admits of all direct 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 peculiar 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 modern 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 (emphasis supplied).

Comment: Here, Lieber appears to adopt somewhat of a middle ground between McClellan’s and Pope’s approaches. The Code acknowledges that war justifies harsh measures, yet —in language that calls to mind McClellan’s appeal to conduct war upon the highest Christian principles—insists that at all times soldiers must remain moral beings. This provision appears to set the army on a track of at least some restraint. It seems to foretell a true civilizing of war, rejecting William T. Sherman’s simple “war is hell” theory.

Article 16. 

Military necessity does not admit of cruelty – that is, the infliction of suffering for the sake of suffering or for revenge, nor of maiming or wounding except in fight, nor of torture to extort confessions.  It does not admit of the use of poison in any way, nor of the 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(emphasis supplied). 

Comment: Again, here we see that the Lieber Code appears to urge a somewhat “softer” approach to war. Not only does it expressly disclaim “cruelty,” but the Code urges every manner of restraint that will permit a “return to peace” without bitterness.

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 war, and, indeed, modern war itself, are means to obtain that object of the belligerent which lies beyond the war. 

Unnecessary or revengeful destruction of life is not lawful. 

Comment: Once again, the Code stresses the goal of limiting the fatal violence of war.

Summary: If one were to stop reading the Code at this point, it would certainly seem that the Code’s primary object was civilizing war-making. While acknowledging war’s inherent harshness, the Code demands restraint and morality, while it requires that combatants always focus upon what conduct will best ensure a return path to peace. The question is whether the remainder of the Code would live up to these lofty-sounding principles.

^[1] “Abraham Lincoln to Cuthbert Bullitt, July 28, 1862,” House Divided: The Civil War Research Engine at Dickinson College, https://hd.housedivided.dickinson.edu/node/40493.

^[2] “General McClellan Letter to President Lincoln on His Evacuation from the Peninsula Campaign,” The Kolbe Foundation, https://kolbefoundation.org/gbookswebsite/studentlibrary/americanpapers/civilwar/mcclellanletterlincoln.htm.

^[3] John J. Hennessy, Return to Bull Run: The Campaign and Battle of Second Manassas (New York, Simon & Shuster, 1994), pp. 14 – 19; Daniel E. Sutherland, “Abraham Lincoln, John Pope, and the Origins of Total War,” The Journal of Military History, Vol. 56, No. 4, pp. 577 – 578, 583 (Lexington, VA, Oct. 1, 1992).

^[4] The War of the Rebellion: A Compilation of The Official Records of The Union and Confederate Armies, Series III, Vol. 3 (U.S. Government Printing Office, Washington, D.C., 1880 – 1901), pp. 148 – 164. Frances Lieber commenced work on the Code in December 1862. John Fabian Witt, Lincoln’s Code: The Laws of War in American History (Free Press, New York, NY, 2012), pp. 229 – 231.

^[5] For example, according to Emer de Vattel, an 18th century authority on the laws and usages of war, women and unarmed, unoffending “peasants” were not to be abused and must be permitted to hold onto their property.  Emer de Vattel, The Law of Nations (LF ed.) 1797, Sections 145, 147, https://oll.libertyfund.org/title/whatmore-the-law-of-nations-lf-ed.

^[6] The War of the Rebellion: A Compilation of The Official Records of The Union and Confederate Armies, Series III, Vol. 2 (U.S. Government Printing Office, Washington, D.C., 1880 – 1901), p. 951.