Lincoln, Lieber and the Laws of War: The Origins and Limits of the Principle of
Military Necessity
§1
STOR
Burrus M. Carnahan
The American Journal of International Law, Vol. 92, No. 2. (Apr., 1998), pp. 213-231.
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LINCOLN, LIEBER AND THE LAWS OF WAR: THE ORIGINS
AND LIMITS OF THE PRINCIPLE OF MILITARY NECESSITY
By Burrus M. Carnahan*
The roots of the modern law of war lie in the 1860s. Developments in this decade
began in 1862 when Henry Dunant published Un Souvenir de Solferino which inspired
the conclusion two years later of the first Geneva Convention on treat m ent of the sick
and wounded.2 Four years later came the first multilateral agreement to ban the use of
a particular weapon in war.3 And in 1863, before either of these agreements had been
concluded, the earliest official government codification of the laws of war was promul
gated by the United States. This codification was issued as General Orders No. 100,
Instructions for the Government of Armies of the United States in the Field, more
commonly known as the “Lieber Code.”4
Drafted by an academic intent on drawing general principles of human morality from
empirical evidence, and issued by a President determined to found his policies on human
reason, the Lieber Code may be considered the final product of the eighteenth-century
movement to humanize war through the application of reason.5 From this standpoint,
the Lieber Code’s greatest theoretical contribution to the modern law of war was its
identification of military necessity as a general legal principle to limit violence, in the
absence of any other rule.6 This principle soon achieved international recognition in
the St. Petersburg Declaration of 1868.7
,l
* Senior Analyst, Science Applications International Corp., McClean, Va.; Lt. Colonel, USAF (ret.).
1 See A r th u r Nussbaum , A C on cise H is to r y o f t h e Law o f N a tio n s 226 (rev. ed. 1954); H en ry D u n a n t,
A M em ory o f S o lfe r in o (English ed. 1959).
2 C onvention for the A m elioration o f the C ondition o f the W ounded in Arm ies in the Field, Aug. 22, 1864,
reprinted in T he Laws of A rmed C onflicts 279 (Dietrich Schindler & Jin T om an eds., 3d rev. ed. 1988)
[hereinafter A rmed C onflicts ] . T he C onvention, and the international Red Cross m ovem ent, grew out o f a
proposal by H enry D unant o f Geneva, Switzerland, who witnessed the suffering o f the w ounded after the 1859
battle o f Solferino betw een France and Austria. See N ussbaum , supra note 1, at 2 2 4 -2 7 . In Un Souvenir de
Solferino, D unant called for “ a special congress to form ulate” an “ international principle, with the sanction
o f an inviolable Convention, which . . . m ight constitute a basis for Societies for the relief o f the w ounded
in the various countries o f E urope.” D u n a n t , supra note 1, at 126.
3 Declaration Renouncing the Use, in Time of War, of Explosive Projectiles under 400 Grammes Weight,
Nov. 29/Dec. 11, 1868, reprinted m Arm ed C o n flic ts , supra note 2, at 101.
4 U.S. War Department, General Orders No. 100, Apr. 24, 1863 [hereinafter Lieber Code], reprinted in A rmed
C onflicts , supra note 2, at 3.
5 See, e.g., N ussbaum , supra note 1, at 1 2 9 -3 1 , 139, 227; F rank Freidel , Francis L ieber , N ineteenth C entury L iberal 1 4 7 -5 1 , 3 3 2 -3 5 (1947); Phillip S. Paludan, Lincoln and the Rhetoric of Politics, in A C risis o f
Republicanism 73 (Lloyd E. Am brosius ed., 1990). In contrast, D unant’s A M emory o f S olferino , supra note
1, with its overt appeal to “ noble and com passionate hearts and . . . chivalrous spirits,” id. at 118, represents
a 19th-century Rom antic approach to lim iting war. Many o f the Rom antics (including Dunant) did not reject
the E nlightenm ent appeal to reason as such but, rather, attem pted to go beyond it to engage the em otions,
cf. H ugh H o n o u r , R omanticism 2 8 0 -8 2 (1979). Just as som e Rom antic artists and writers seem to have
attem pted to shock the public into religious faith, id. at 2 7 7 -8 0 , so Dunant, through gritty descriptions o f
individual suffering after Solferino, sought to shock the public into hum anitarian action.
6 Military necessity is widely recognized as one o f the underlying principles o f the m odern law o f war. See,
e.g., M ichael B o t h e , Karl Partsch & W aldemar S olf , N ew R ules for V ictims o f A rmed C onflicts 194
95 (1982); U.S. D e p t o f the A ir F orce , International Law — T he L aw o f A rmed C onflict an d A ir
O perations , para. l-3 a (l) (AFP No. 110-31, 1976); 2 G eorg S chwarzenberger , I nternational Law 9 -1 3
(1968); M yres S. M c D ougal & F lo rentino P. F eliciano , L aw and M inim um W orld P ublic O rder 5 2 1 -2 2
(1961); cf. U.S. D ep t o f the A rmy, T he L aw o f Land W arfare , para. 3 .a. (Field M anual No. 27-10, 1956)
[hereinafter FM 27-10].
7 Declaration Renouncing the Use, in Time of War, of Explosive Projectiles under 400 Grammes Weight,
supra note 3.
213
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[Vol. 92:213
O r ig in s a n d I n f l u e n c e o f t h e L ie b e r C o d e
From the U.S. War Department’s point of view, the Lieber Code was primarily a
response to the expansion of the United States Army during the Civil War. The old army
had been a band of thirteen thousand frontier professionals; in the war it expanded to
a mass force of a million men. The prewar army had been small enough, and its pace
of life slow enough, for junior officers to learn the fundamentals of military law and the
customs of war from their more experienced colleagues. The Civil War army, however,
was led by thousands of inexperienced volunteer officers who had nowhere to turn when
faced with legal issues ranging from the drafting of court martial charges to the paroling
of prisoners of war. Military law and the international legal environment of military
operations were unfamiliar even to officers who had been lawyers in civilian life.
This unsatisfactory situation stimulated various reforms, including raising the status
and expanding the powers of the army’s chief legal officer (the Judge Advocate General)
and deploying judge advocate officers to the staffs of field commanders. The specific
response to the widespread ignorance of the laws and customs of war was the General
Orders No. 100, the Lieber Code.8 The code was named for its drafter, Dr. Francis
Lieber, a professor of law at Columbia College (now Columbia University). A veteran
of combat in Europe whose own family had been divided by the American Civil War,
Lieber was uniquely qualified to codify the laws by which that war should be conducted.
As a soldier, Lieber had served against Napoleon in the Waterloo campaign and partici
pated in the Greek War of Independence. He emigrated to the United States in 1827
after facing political persecution in his native Prussia, and by 1857 he had been appointed
Professor of Modern History, Political Science and International, Civil and Common
Law at Columbia.9
A strong abolitionist, Lieber became an early and active backer of the Union side in
the Civil War. In 1861 and 1862, he gave the U.S. Army valuable guidance on the
treatment of Confederate prisoners and the handling of guerrillas and other irregular
forces. Arguing that, under the laws of war, the federal Government could accord individ
ual Confederates the privileges of belligerency for humanitarian reasons, without in any
way recognizing the legitimacy of their government, he solved a difficult political problem
for the Lincoln administration.10
Building on the quasi-official relationship he had developed with the War Department,
he proposed to the General in Chief of the Army in November 1862 that the President
“issue a set of rules and definitions providing for the most urgent issues occurring under
the Law and usages of War.” The President, he urged, “as Commander in Chief, through
the Secretary of War, ought to appoint a committee, say of three, to draw up a code
. . . in which certain acts and offenses (under the Law of War) ought to be defined
and, where necessary, the punishment be stated.” 11
8 See U.S. D e p t of the A rmy, T he A rmy L awyer: A H istory of th e J udge A dvocate G eneral ’s C orps ,
1775-1975, at 49-52 (1975) [hereinafter T he A rmy Lawyer] ; H arold H yman , A M ore P erfect U n io n 188
93 (Sentry 1975) (1973); M ichael H offm an, Unplanned but Imperative: The Origins of the Judge Advocate General’s
Civil Authority, M il . L. Rev ., Sum m er 1979, at 129, 132-35.
9 See F reidel , supra note 5, at 11-18, 28, 52, 294. Two of Lieber’s sons served in the U.S. Army, one losing
an arm because of wounds. The third son died of wounds while in Confederate service.
10 See Richard S. H artigan , L ieber ’s C ode and th e Law of W ar 9, 43 (1983); T he A rmy Lawyer , supra
note 8, at 61-62. Lincoln regarded the U n ion as indivisible. T he seceding state governm ents and the C onfeder
acy they form ed were m erely com binations o f treasonous individuals, and had no other international or
dom estic legal status. See, e.g., Mark G rimsley , T he H ard H and of W ar 11-13 (1995); Jam es M cPherson,
Lincoln and the Strategy of Unconditional Surrender, in L inc o ln , T he W ar P resident 31, 41 (Gabor Boritt ed.,
1992).
11 Letter, Francis Lieber to Henry W. Halleck (Nov. 13, 1862), quoted in H artigan , supra note 10, at 79. The
General in Chief, Major General Henry W. Halleck, had himself published a treatise on international law,
and Lieber addressed him “as the jurist, no less than as the soldier.” Id.
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LINCOLN, LIEBER AND THE LAWS OF WAR
215
A little over a month later, Lieber was himself appointed, together with four general
officers, to a board charged with proposing “a code of regulations for the government
of armies in the field, as authorized by the laws and usages of war.” 12 In practice, Lieber
devoted himself to codifying the laws and customs of war, while the other members (two
of whom had been lawyers in civil life) turned to a revision of military law and made
only minor changes in Lieber’s drafts.13 After its approval by President Lincoln, the code
was issued on April 24, 1863.14
As both “the first attempt to check the whole conduct of armies by precise written
rules” 15 and “a persuasively written essay on the ethics of conducting war,” 16 the Lieber
Code projected its influence far beyond the ranks of the United States Army. In 1868
an international commission meeting in St. Petersburg, Russia, applied the code’s princi
ple of military necessity to ban the use of small-caliber explosive bullets because they
would cause “unnecessary suffering.” 17 In 1870 the Prussian Government adapted the
code as guidance for its army during the Franco-Prussian War. The code also formed
the basis of the Brussels Declaration of 1874, which in turn influenced the Hague
Regulations on the Laws and Customs of War on Land of 1899 and 1907, the foundation
of the law of land warfare for the entire twentieth century.18
D e f in in g M il it a r y N e c e ss it y
In drafting his code, Lieber drew upon a miscellany of historical and contemporary
precedents and documents.19 President Lincoln’s proclamations, and other public docu
ments referring to military necessity, were undoubtedly among the resources he used in
defining the doctrine of military necessity.
In particular, the general definition of military necessity in Article 14 appears to have
drawn on one of President Lincoln’s proclamations. Lieber’s definition reads as follows:
“Art. 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.” Modern authorities on
the law of war continue to refer to this definition, particularly the phrase “indispensable
for securing the ends of the war.”20 Its origins can be traced to the President’s response
to a premature emancipation proclamation issued by Major General David Hunter.
12 U.S. War Department, Special Orders No. 399, Dec. 17, 1862, para. 5, quoted in id. at 85.
13 See F reidel , supra note 9, at 332-35.
14 When published, the Lieber Code was officially described as “instructions for the government of armies
in the field, prepared by Francis Lieber, LL.D., and revised by a board of officers.” The President ordered
that they be published “for the information of all concerned.” See H artigan , supra note 10, at 106-07.
Although issued to all organizations of the U.S. Army as a general order, the Lieber Code was therefore
informational, rather than directive, in nature. That is, President Lincoln was not ordering all members of
the army to comply with the code; rather, he was issuing it as one source (albeit an officially approved source)
of the laws and customs of war. See Freidel , supra note 9, at 334-35.
15 N ussbaum , supra note 1, at 227.
16 F reidel , supra note 9, at 335.
17 Declaration Renouncing the Use, in Time of War, of Explosive Projectiles under 400 Grammes Weight,
supra note 3.
18 See Regulations annexed to Convention [IV] Respecting the Laws and Customs of War on Land, Oct. 18,
1907, 36 Stat. 2227, reprinted in A rmed C onflicts , supra note 2, at 63; H artigan , supra note 10, at 22. Cf
N ussbaum , supra note 1, at 227.
19 See F reidel , supra note 9, at 333.
20 See U.S. D e p t o f t h e A ir F o rce, supra note 6; M cD o u g a l 8c F elicia n o , supra note 6; FM 27-10, supra
note 6. But see B o th e , P a r tsc h 8c S o lf, supra note 6 (defining military necessity as the principle justifying
measures “relevant and proportionate” to securing the prompt submission of the enemy). They would reserve
the term “indispensable” to cases of “urgent” or “imperative” military necessity. Id. at 194 n.7. On the other
hand, M c D o u g a l 8c F elicia n o , supra, at 528, appear to regard “relevant and proportionate” violence to be
equivalent to “indispensable” violence.
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[Vol. 92:213
On May 9, 1862, General Hunter, commanding federal forces in Union enclaves along
the Carolina and Georgia coasts, issued a general order declaring all slaves held in
Georgia, Florida and South Carolina to be free. Within six months, Lincoln himself
would issue a preliminary emancipation proclamation, but in May the time was not yet
ripe to declare emancipation a war aim of the Union.21
On May 19, therefore, the President issued a proclamation declaring H unter’s order
void and noting that the Government had not authorized any military commander
to declare slaves free. He also, however, held the door open to eventual adoption of
emancipation as a uniform, national military measure:
I further make known that whether it be competent for me, as Commander-inChief of the Army and Navy, to declare the Slaves of any state or states, free, and
whether at any time, in any case, it shall have become a necessity indispensable to the
maintenance of the government, to exercise such supposed power, are questions which,
under my responsibility, I reserve to myself, and which I can not feel justified in
leaving to the decision of commanders in the field.22
As an ardent enemy of slavery, Lieber was undoubtedly familiar with Lincoln’s proclama
tion of May 19 and would have been anxious to legitimize the President’s power to free
slaves as a military measure, despite the then widely held belief that the federal Govern
ment had no power over slavery in the states, even when those states were in active
rebellion against it. By defining military necessity to include all measures “indispensable
for securing the ends of the war,” Lieber ensured that, whatever other limits this legal
principle might place on military operations, it would be broad enough to include
President Lincoln’s standard for military emancipation— “a necessity indispensable to
the maintenance of the government.”
Military Necessity as a Restraint
Following the general definition in Article 14, Lieber illustrated the concept of military
necessity with examples of measures that are justified by military necessity, as well as
those that remain forbidden “according to the modern law and usages of war.”
Art. 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.
Art. 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 war, 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.
21 In addition, government policy on slavery had to be uniform, and not subject to the pro- or antislavery
views of regional commanders. Before the Civil War, Hunter had been one of the few abolitionist officers in
the U.S. regular army. See E dward M iller , L inc o ln ’s A bolitionist G eneral (1997).
22 Abraham L in c o ln , Sp eeches and W ritin g s 1859-1865, at 318-19 (Library of Am erica ed., 1989) (em pha
sis added).
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LINCOLN, LIEBER AND THE LAWS OF WAR
217
Although not readily apparent today, recognition of military necessity as a legal precon
dition for destruction represented an enlightened advance in the laws of war in the
nineteenth century. In the first half of that century, the law of nations permitted the
capture or destruction of any and all property belonging to any person owing allegiance
to an enemy government, whether or not these measures were linked to military needs.
As Chief Justice Marshall had noted in 1814:
That war gives to the sovereign full right to take the persons and confiscate the
property of the enemy wherever found, is conceded. The mitigations of this rigid
rule, which the humane and wise policy of modern times has introduced into
practice, will more or less affect the exercise of this right, but cannot impair the
right itself.23
That the property might have no military significance was irrelevant. Military necessity
was not a legal prerequisite to visiting indiscriminate destruction on the unarmed subjects
of an enemy state, although the commentators agreed with the Chief Justice that this
practice might not be a “humane and wise policy.” The unfettered discretion to enjoy
enemy property, and to “take” noncombatant enemy nationals,24 was put to rest by
Lieber’s doctrine of military necessity.
Military Necessity as a License for Mischief
Unfortunately, the Confederate authorities did not welcome the Lieber Code as a
favorable development. To the contrary, they used it for propaganda against the Lincoln
administration.25 A copy of the code was officially delivered to Colonel Robert Ould, the
Confederate Agent for Exchange of Prisoners, on May 22, 1863.26 On June 24, Confeder
ate Secretary of War James Seddon issued a lengthy denunciation of the Lieber Code
as a “confused, unassorted and undiscriminating compilation” of “obsolete” and “repu
diated” views.27 Seddon’s central target, however, was the doctrine of military necessity:
[I] n this code of military necessity . . . the acts of atrocity and violence which have
been committed by the officers of the United States and have shocked the moral
sense of civilized nations are to find an apology and defense.
23 Brown v. U nited States, 12 U.S. (8 Cranch) 110, 1 2 2 -2 3 (1814). As counsel before the Suprem e Court
in the case o f Ware v. H ylton, 3 U.S. (3 Dali.) 199 (1796), John Marshall had unsuccessfully relied on this
rule to argue that state governm ents, during the Am erican Revolution, could “ confiscate” private debts ow ed
to British creditors because these were the property o f enem y aliens. T he Court rejected this argum ent as
inconsistent with the terms o f the Treaty o f Paris endin g the war. See F ran ces R udko, J o h n M a r s h a ll and
I n te r n a tio n a l Law 2 6 -3 0 (1991).
24 By the 18th century, European powers no longer enslaved captured enem y nationals or held them for
ransom , see T he A ntelope, 23 U.S. (10 W heat.) 66 (1825) (Marshall, C.J.), though the practice was still com m on
in naval wars betw een those powers and the M uslim principalities o f N orth Africa well into the 19th century,
see Robert A llison , T he C rescent O bscured / T he U nited States and th e M uslim W orld 1 776-1815, at
1 0 7 -2 6 (1995). Early 19th-century peace treaties betw een those states and the U nited States included guaran
tees that, in the event o f another war, captives w ould not be enslaved but w ould be treated as prisoners o f
war. See Treaty o f Peace and Amity, U.S.-Algiers, June 30, 1815, Art. 17, 6 Stat. 224; Treaty o f Peace and Amity,
U.S.-Tripoli, June 4, 1805, Art. 16, 8 Stat. 214. Slavery in the U nited States itself was the m ost tragic and longest
lasting effect o f the doctrine that war captives could be enslaved. M ost o f the Africans brought to Am erica
were originally enslaved as a result o f their capture in wars betw een the kingdom s and nations o f W est Africa.
See P eter Ko lch in , A merican S lavery 20 (1993). For an individual exam ple, see T erry A lford , P rince
A m ong S laves 2 1 -3 0 (O xford paperback 1986). Cf. M arshall’s opin ion in T he A ntelope, supra.
25 See F reid el, supra note 5, at 339.
26 Lt. Col. Ludlow to Col. H offm an (June 6, 1863), reprinted in H artigan , supra n ote 10, at 113. In 18thcentury Europe, the practice developed o f periodically exchanging prisoners o f war during the conflict in
w hich they were captured. This practice still prevailed during the Civil War, although it broke down repeatedly.
O uld and Ludlow were, respectively, the C onfederate and U n ion agents for concluding such exchanges, and
were the on e continuing channel o f com m unication betw een the two sides. See generally W illiam H esseltine ,
C ivil W ar P risons (1930).
27 Seddon to Ould (June 24, 1863), reprinted in H a rtig a n , supra note 10, at 120.
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. . . They cannot frame mischief into a code or make an instituted system of
rules embodying the spirit of mischief under the name of a military necessity.28
One prominent historian of the Lincoln assassination has even suggested that the
Confederate government may have supported clandestine operations to kidnap or assassi
nate President Lincoln in part as a tu quoque response to this view of the Lieber Code’s
principle of military necessity:
It is foreign to the way Americans have been taught to think about the Civil War,
but why should not Southern leaders have concluded at this time [1865] that the
doctrine of military necessity, so often and so ruthlessly employed against them by
Lincoln, justified direct attacks against him and members of his administration?
The Union army’s own General Order No. 100 looked “with horror upon the
assassination of enemies,” but condoned “military necessity,” which it defined as
“the necessity of those measures which are indispensable for securing the ends of
the war . . . .”29
The later history of the doctrine in Germany lends support to Confederate Secretary
Seddon’s critique that it could mask questionable activities. Adoption of the Lieber Code
by Prussia in 1870 has been hailed as one of the early triumphs of the code as a restraint
on wartime behavior.30 By 1902, however, Lieber’s principle of military necessity had
evolved there into the doctrine of Kriegsraison, which permitted the German army to
violate many of the laws and customs of war on the basis of military necessity.31
This extreme form of military necessity was rejected by war crimes tribunals after
World War II, and now finds no support among authorities on the law of war. As Article
14 of the Lieber Code stated, military necessity justifies only those actions “which are
lawful according to the modern law and usages of war,” i.e., those which do not violate
some specific, positive obligation of that law, such as the rule against assassination.32
Much of the destruction incident to warfare, however, is not governed by specific legal
rules, and in the Civil War era there were far fewer such rules than today. In the absence
of any positive rule of war, military activity was, and is, to be restrained chiefly by the
doctrine of military necessity. Does Confederate Secretary Seddon’s critique remain valid
in such cases? Does military necessity merely embody “the spirit of mischief” so as to
28 Id. at 1 2 3 -2 4 .
29 William H anchett, The Happiest Day of His Life, in C ivil W ar Times I llu s tr a te d , N ov./D ec. 1995, at 76,
82. T he C onfederate governm ent believed that Lincoln had approved cavalry raids aim ed at capturing or
killing high C onfederate officials. See W illiam T id w e ll, Tames H a ll & D avid Gaddy, Com e R e tr ib u tio n 245
48 (1988).
30 See H a rtig a n , supra note 10, at 22; cf. Nussbaum , supra note 1, at 227, 345 n.75.
31 See F rits K a lsh o v en , B e llig e r e n t R ep risals 366 (1971); J u liu s S to n e , L e g a l C o n tr o ls o f In te r n a
t io n a l C o n f lic t 3 5 1 -5 2 (1954). For alternative views on the application o f Kriegsraison in occu pied Belgium
during W orld War I, com pare E yal B en ven isti, T h e I n te r n a tio n a l Law o f O cc u p a tio n 3 2 -4 8 (1993), with
B arbara T uchm an, T h e G uns o f A u g u st 3 1 3 -3 2 (1962).
32 See, e.g., U.S. Dep’t o f t h e A ir F o rce, supra note 6; James B ond , T h e R u le s o f R io t 6 5 -6 8 (1974);
S to n e , supra note 31, at 352; D enise Bindschedler-Robert, Problems of the Law of Aimed Conflicts, m l A T r ea tise
o n I n te r n a tio n a l C rim inal Law 295, 3 0 5 -0 6 (M. C herif Bassiouni & V ed N anda eds., 1973). In this respect
the doctrine o f military necessity is to be distinguished from absolute necessity or force majeure, either o f which
m ight, in principle, excuse violation o f any positive rule o f international law, see Bin C h en g, G en er a l P rin cip les
o f Law as A pplied by I n te r n a tio n a l C o u r ts an d T rib u n a ls 71 (1953) . Force majeure includes only extraneous
events that m ake perform ance im possible, while necessity always involves a deliberate choice to disregard a
rule. See 1 S ch w arzen b erger, supra note 6, at 642 (1957). Absolute necessity is also to be distinguished from
military necessity in that the existence o f the state, not m erely military victory, m ust be in peril before the
form er doctrine will apply, see Bin C h en g, supra, at 71. Cf. 1 S ch w arzen b erger, supra, at 5 3 8 -4 1 . This very
high standard has rarely, if ever, been m et. It is not clear w hether absolute necessity w ould excuse violations
o f the laws and custom s o f war. S to n e , supra note 31, at 3 5 2 -5 3 , suggests that it m ight. Query the im pact o f
absolute necessity on obligations that are jus cogens; m ost o f the authorities on absolute necessity predate
developm ent o f the doctrine o f jus cogens.
1998]
LINCOLN, LIEBER AND THE LAWS OF WAR
219
justify “acts of atrocity and violence which have . . . shocked the moral sense of civilized
nations”? Or does it, if applied in good faith, impose real limits on atrocity and violence?
L in c o l n s P r a c t ic e o f M il it a r y N e c e ssit y
Another way to frame these questions is to ask what President Lincoln believed he
was authorizing and prohibiting when he approved General Orders No. 100. Lincoln’s
own decisions and practices as Commander in Chief constitute the best evidence on
this issue.
In addition, these decisions hold more than historical interest. The principle of military
necessity remains an important source of the contemporary law of war, even though
many of the issues faced by Lincoln and his commanders are now governed by specific
treaty rules. Knowing what military necessity was thought to mean when the principle
was first formulated should be useful to those who must apply it in the future.
By the time he approved the Lieber Code in early 1863, Lincoln had already given
considerable thought to the meaning of necessity in a military context, and he probably
regarded military necessity as a general principle of law even before seeing Lieber’s
draft. A lifelong proponent of reason over intuition and emotion,33 Lincoln adopted a
legal method marked by “directness of thought,” taking “the shortest distance between
two legal points.”34
His mind worked in terms of basic ideas presented as fundamentals. There was
about him no effulgent erudition, no fountain of learning, no spray of new thoughts
and ideas flickering out like so many sparks from an emery wheel. . . . His was the
mental process of a pile driver landing directly on point.35
For such a mind, the doctrine of military necessity had a powerful attraction as organiz
ing principle and foundation for political and military action in defense of the Union.
“Lincoln’s legal guideline was the preservation of the Union. He believed he had the
power to do what was in his sober judgm ent necessary for that purpose. What was not
necessary he would not attempt.”36 Moreover, “ [t]he borders of necessity were a practi
cal, meaningful thing to him.”37
Political Objectives
The most fundamental limitation on military necessity revealed in Lincoln’s decisions
was that it could be invoked only to attain a military objective, i.e., one that could have
an impact on the battlefield, and never a political objective. This distinction may seem
absurd to those who accept Clausewitz’s maxim that war is “a true political instrument,
a continuation of political activity by other means.”38 Yet the distinction was central to
Lincoln’s constitutional theory of presidential war powers.
In the 1860 presidential election, Lincoln and the Republican Party had consistently
run on the position that, under the Constitution, Congress could not interfere with the
domestic institutions, including slavery, of any state, or take private property without
compensation.39 Because the Union was permanent, in his view, the states could not
33 See D avid H erbert D o na ld , L incoln 82-83 (1995); M ichael B urlingame , T he I nner W orld of A bra
L incoln 7 (1994); D aniel H owe, Why Abraham Lincoln Was a Whig, 16 J. A braham L incoln A ss ’n 27
(1995).
34J o h n Frank, L in c o ln as a Lawyer 144, 146 (Americana House 1991) (1961).
35 Id. at 144.
36 Id. at 150-51.
37 M a t 150.
38 C a r l v o n C la u sew itz , O n W ar 87 (Michael Howard & Peter Paret ed. and trans., 1976) (1832).
39 See, e.g., First Inaugural Address (Mar. 4, 1861), in L inc o ln , supra note 22, at 215; Speech at Cincinnati,
Ohio (Sept. 17, 1859), in id. at 59-61.
ham
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secede, and relations between the federal Government and the states were governed by
the Constitution throughout the Civil War.40
If the Civil War was a war for the federal Constitution, it had to be conducted in a
manner consistent with that document. Lincoln had to demonstrate to the people of
the North, and to pro-Union elements in the wavering border states, that “law would
rule this conflict” and that “the government was being steered by a hand stronger than
partisan caprice.”41 The constitutional definition of treason suggested that individuals
might “levy war” against the United States.42 Once a relationship of “war” existed, the
President could deal with American rebels on the basis of the international law of war.43
Unfortunately, that body of law placed few real limits on the treatment of enemy civilians
or their property.
Hence the political appeal, to Lincoln, of the doctrine of military necessity as part
of the law of war. Interference with property, slavery, civil government and other state
institutions for military purposes could be constitutionally justified as an exercise of
the President’s war powers. To take the same actions for political purposes, however,
might go beyond the powers even of Congress. The identification of a narrowly military
purpose for federal acts in relation to rebel civilians was therefore essential, in Lincoln’s
view, to the constitutionality of those acts. Two of Lincoln’s letters, one from early in
the war and the other from its final months, illustrate the continuity of his reasoning
on this issue.
At the end of August 1861, General John C. Fremont declared martial law in Missouri.
He then issued a proclamation that confiscated the property of Missourians supporting
the Confederate cause and freed their slaves. At that time, Lincoln was making special
efforts to keep Kentucky, a slave state that had declared itself neutral in the war, within
the Union.44 Concerned that Fremont’s emancipation decree would alienate Kentucky,
Lincoln first suggested, and then ordered, that the decree be modified.45
Lincoln later justified this action to Senator Orville Browning in terms of both the
political need to mollify slaveholders in Kentucky and the proper application of military
necessity:
Genl. Fremont’s proclamation, as to confiscation of property, and the liberation of
slaves, is purely political, and not within the range of military law, or necessity. If a
commanding General finds a necessity to seize the farm of a private owner, for a
pasture, an encampment, or a fortification, he has the right to do so, and to so
hold it, as long as the necessity lasts; and this is within military law, because within
military necessity. But to say that the farm shall no longer belong to the owner, or
his heirs forever; and this as well when the farm is not needed for military purposes
as when it is, is purely political, without the savor of military law about it. And the
same is true of slaves. If the General needs them, he can seize them, and use them;
but when the need is past, it is not for him to fix their permanent future condition.
That must be settled according to laws made by law-makers, and not by military
proclamations. . . .
40 See D o n a ld , supra note 33, at 3 0 2 -0 3 .
41 P hillip S. P aludan , T he P residency of A braham L incoln 79, 75 (1994).
42 “Treason against the United States, shall consist only in levying War against them, or in adhering to their
Enemies, giving them Aid and Comfort.” U.S. C o n st . Art. II, §3.
43 “I think the constitution invests its com m ander-in-chief, with the law o f war, in tim e o f war.” Letter,
Lincoln to Jam es Conkling (Aug. 26, 1863), in L in c o ln , supra note 22, at 495, 497. Cf. L ou is H enkin , F oreign
A ffairs and the C onstitutio n 52 (1972): “H e [the President] can exercise the rights which the state-of-war
accords the U nited States under international law in regard to the enem y as well as to neutrals.”
44 See J ames M cP h erson , Battle C ry of Freedom 3 5 2 -5 3 (1988); Steph en O ates , W ith M alice T oward
N one 2 8 0 -8 3 (New Am erican Library 1978) (1977).
43 See Letters, Lincoln to John C. Fremont (Sept. 2 and 11, 1861), in L in c o ln , supra note 22, at 2 6 6 -6 7 . As
modified, Fremont’s proclamation affected only property and slaves directly used in the Confederate war
effort. See M cP h erso n , supra note 44, at 353.
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I do not say that Congress might not with propriety pass a law, on the point, just
such as General Fremont proclaimed. . . . What I object to, is, that I as President,
shall expressly or impliedly seize and exercise the permanent legislative functions
of the government.46
Lincoln may appear to have repudiated this reasoning when he issued his own prelimi
nary emancipation proclamation exactly one year later. On September 22, 1862, acting
on his authority as Commander in Chief, the President declared that after January 1,
1863, “all persons held as slaves” in any area in rebellion against the U.S. Government
would be “forever free.”47 Yet there are crucial differences between Fremont’s proclama
tion and Lincoln’s that make the latter more justifiable as a measure of military necessity.
Fremont’s order would have freed slaves to punish disloyal activities of the slaveholder,
regardless of whether those slaves were used, or were available to be used, in support
of the Confederate war effort. Insofar as it established a specific penalty for individual
disloyalty, the order was political and legislative, rather than military, in character.
Lincoln’s order, on the other hand, applied only to slaves in areas under rebel control,
whose labor was thus available to support the Confederate war effort. The promise of
freedom encouraged those slaves to escape to Union territory, denying their services to
the Confederacy.
Lincoln’s distinction between political and military measures had a distant echo after
the so-called Christmas Bombing of North Vietnam in 1972. On December 13 of that
year, negotiations to end the long American involvement in the Vietnam War ended
without an agreement, largely because of the last-minute intransigence of the North
Vietnamese delegation. Five days later, the United States began an eleven-day bombing
campaign in Hanoi and Haiphong, North Vietnam.48 The targets of the campaign, known
as Linebacker II to the U.S. military but dubbed the Christmas Bombing in the popular
media, were military installations or war-supporting industries, all within the traditional
definition of military objectives in international law.49 The purpose of the campaign,
however, was not to respond to a new military threat from North Vietnam. Rather, it
was to induce the North Vietnamese Government to return to the negotiating table.
One official history summarized the purposes of Linebacker II as follows: “Heavy bom
bardment on a concentrated, massive scale against the North Vietnamese ability to make
war was the method selected to bring the point home.”50
Three years later, Hamilton DeSaussure and Robert Glasser questioned the interna
tional legality of the Linebacker II raids on the basis of their political motivation: “ [C]an
air attacks ever be justified when the predominant purpose of the raid is political and
when political, not military, advantages are the immediate end sought by the specific
attacks . . . ?”51 They later suggested that “even attack on military objectives may be
46 Letter, Lincoln to Orville H. Browning (Sept. 22, 1861), in L inc o ln , supra note 22, at 268-69 (emphasis
in original).
47 Preliminary Emancipation Proclamation (Sept. 22, 1862), in id. at 368. Concern over charges that Lincoln
was usurping legislative functions, a concern he had denounced to Senator Browning a year earlier, may
account for the President’s decision to include lengthy statutory quotations in the proclamation, see id. at
369-70.
48 See M artin H erz , T he P restige P ress and the C hristmas B om bing , 1972, at 6 -12 (1980).
49 See id. at 23 (air bases, rail yards and shipyards, antiaircraft sites, com m unications facilities, vehicle repair
shops, warehouses, power plants, railway bridges, truck parks and radar installations); J ames M c Carthy &
G eorge A llison , L inebacker II: A V iew from the R ock 41-42, 97-98,101, 122-23 (U.S. Air Force Southeast
Asia M onograph Series Vol. VI, m onograph 8, 1979) (airfields, surface-to-air m issile storage sites, petroleum
product storage, railroad yards, transform er station).
50 M cC arth y 8c A llis o n , supra note 49, at 1.
51 Hamilton DeSaussure 8c Robert Glasser, Air Warfare— Christmas 1972, in Law and Responsibility in
W arfare 119, 133 (Peter D. Trooboff ed., 1975).
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unjustified when the military advantage to be gained is not significant and political
motives for the attack predominate.”52
This critique, however, presses the distinction between military and political acts too
far for practical application. As Clausewitz noted, war itself is a political act. Any major
military operation will emanate from both military and political motivations. In World
War II, for example, the “predominant purpose” of the Normandy invasion of June 6,
1944, might be considered a military goal (defeating the German army in France), a
political goal (the unconditional surrender of Germany) or a mixed goal (liberation of
France).
Similarly, in the American Civil War, the “predominant purpose” of all federal offen
sive operations was the political goal of reestablishing U.S. government authority over
the states that had seceded from the Union. According to one historian, President
Lincoln’s role in “shaping a national strategy of unconditional surrender by the Confed
eracy” was his most important strategic contribution to the Union victory. This national
strategy, in turn, gave purpose to “a military strategy of total war.”53
Finally, if the legality of an attack turns on the motivation or predominant purpose
of the highest governmental authority approving it, it will be impossible for an objective
observer to determine whether the attack was justified by military necessity. Governments
do not willingly publicize the records of their innermost councils, especially during
wartime.
In distinguishing the military from the political in his letter to Senator Browning on
General Fremont’s decree, Lincoln took a more practical approach. He never speculated
on Fremont’s motives for freeing the slaves and confiscating the property of rebel sympa
thizers. Rather, he looked to the effects that under ordinary circumstances could logically
be inferred from Fremont’s actions. A military commander may seize whatever his com
mand needs, and “so hold it, as long as the necessity lasts.” A field commander, however,
would ordinarily have no need to change the ownership of real property or the status
of enslaved persons permanently; “when the need is past, it is not for him to fix their
permanent future condition.”54 The proper punishment for disloyalty was a political
question for the legislature and the courts, not the military.
Lincoln’s distinction between acting for military advantage and acting to punish disloy
alty emerged more clearly in another letter, written over three years later. On January
20, 1865, Lincoln ordered the federal military commander in Arkansas to look into the
complaint of a woman whose house and furniture had been seized by his forces in the
name of the U.S. Government. The President noted that she claimed to own this property
“independently of her husband,” who was a member of the rebel army.
It would seem that this seizure has not been made for any Military object, as for
a place of storage, a hospital, or the like, because this would not have required
the seizure of the furniture, and especially not the return of furniture previously
taken away.
The seizure must have been on some claim of confiscation, a matter of which the
courts, and not the Provost-Marshals, or other military officers are to judge.55
Noting that the questions raised by this case involved the ownership of the property,
whether either spouse was a traitor, and whether the husband’s treason made the wife’s
property confiscable, the President continued:
52Id. at 137.
53 McPherson, supra note 10, at 40.
54 See text at note 46 supra.
55 Letter, Lincoln to Joseph J. Reynolds (Jan. 20, 1865), in L inc o ln , supra note 22, at 667, 668 (emphasis
in original). A provost-marshal is “the head of the military police of any post, camp, city or other place in
military occupation, or district under the reign of martial law.” B lack s Law D ictionary 1391 (4th ed. 1951).
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LINCOLN, LIEBER AND THE LAWS OF WAR
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The true rule for the Military is to seize such property as is needed for Military
uses and reasons, and let the rest alone. Cotton and other staple articles of commerce
are seizable for military reasons. Dwelling-houses 8c furniture are seldom so. If Mrs.
Morton is playing traitor, to the extent of practical injury, seize her, but leave her
house to the courts.56
Civil Justice
In 1865, as in 1861, Lincoln believed that punishment of treason was not within
military necessity, even though armed force might be required to suppress treason.157
Similarly, the demands of according civil justice to loyal citizens of the United States did
not create a military necessity. Following precedents from the American Revolution, in
May 1861 the Confederate government confiscated, as enemy property, all debts owed
by persons in its territory to creditors in federal territory, and directed that payment be
made to the Confederate treasury.58 As federal armies began to take control of more
and more rebel territory in the latter half of 1861, the administration was urged to use
military power to assist loyal creditors.
In his 1861 annual message to Congress, President Lincoln noted that there were “no
courts nor officers to whom the citizens of other States may apply for the enforcement
of their lawful claims against citizens of the insurgent States” in enemy territory recently
occupied by federal forces, and that some had estimated the debt owed ‘‘from insurgents,
in open rebellion, to loyal citizens” as being as high as two hundred million dollars. He
nevertheless refused to regard this as a proper sphere for military action:
Under these circumstances, I have been urgently solicited to establish, by military
power, courts to administer summary justice in such cases. I have thus far declined
to do it, not because I had any doubt that the end proposed— the collection of the
debts—was just and right in itself, but because I have been unwilling to go beyond
the pressure of necessity in the unusual exercise of power. But the powers of Con
56 Letter, Lincoln to Reynolds, supra note 55, at 668.
57 As Lincoln was aware, military trial and punishm ent for certain war-related offenses are generally regarded
as justified by military necessity. Such offenses include espionage and sabotage, see, e.g., Ex parte Q uirin, 317
U.S. 1 (1942); Lieber C ode, supra n ote 4, Art. 88; war crim es (i.e., violations o f the laws and custom s o f war,
such as the m urder o f civilians and prisoners o f war), see, e.g., In re Yamashita, 327 U.S. 1 (1946); Trial o f
Captain H enry Wirz (U.S. Mil. C om m ’n 1866), in 1 T h e Law o f War: A D o cu m en ta ry H is to r y 783 (Leon
Friedm an ed., 1972); cf. Lieber C ode, supra, Art. 59 (“A prisoner o f war rem ains answerable for his crimes
com m itted against the captor’s army and people, com m itted before he was captured . . .” ); and assassination.
T he assassins o f President Lincoln, for exam ple, were tried and convicted by a military com m ission on the
theory that they had acted to aid the C onfederate governm ent during the Civil War. See U.S. War Departm ent,
G eneral Court-Martial Orders No. 356 (July 5, 1865), in 6 A C o m p ila tio n o f t h e M essages and Papers o f
t h e P resid en ts 342-48 (Jam es Richardson ed., 1907).
In the war with Mexico of 1846-1848, General Winfield Scott initiated the practice of using military commis
sions to try offenses against the law of war. See K. J ack B auer , T he M exican W ar 253, 326-27 (1974). “Military
commissions,” General Halleck wrote, “differ from courts-martial in that the latter are established by statute
and have only such jurisdiction as the law confers, while the former are established by the President, by virtue
of his war power as commander-in-chief, and have jurisdiction in cases arising under the laws of war.” In
addition, “courts-martial exist in peace and war, but military commissions are war courts and can exist only
in time of war.” Henry W. Halleck, Military Tribunals and Their Jurisdiction, M il . L. R ev . B icentennial Issue
15, 21 (1975). General Halleck was Commanding General of the U.S. Army in 1862-1864; the article quoted
was probably written in 1864. See id. at 15 note. The United States continued to use military commissions
through World War II to try offenses against the law of war. See In re Yamashita and Ex parte Quirin, supra.
The 1949 Geneva Conventions, however, require that prisoners of war be tried by the same courts, using the
same procedures, as try members of the detaining power’s own armed forces. See Convention on Treatment
of Prisoners of War, Aug. 12, 1949, Art. 102, 6 UST 3316, 75 UNTS 135. This requirement probably precludes
the use of military commissions to try members of the enemy’s armed forces.
58 See M c P h erso n , supra note 44, at 437. This action provided short-term financial relief to the Confederate
war effort. By confiscating private property of enemy civilians, however, it also set a precedent that Lincoln
turned against the Confederacy in the Emancipation Proclamation.
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gress I suppose are equal to the anomalous occasion, and therefore I refer the
whole matter to Congress . . . .59
Congress did not act, however, and as the war progressed, the U.S. Army found that
it could not operate in the midst of a civilian population and simply ignore that popula
tion’s demands for justice. Civil chaos provoked crimes against the army and its property,
undermined discipline within the army, and created fertile ground for guerrilla activity.
Under the “pressure of necessity,” federal commanders therefore established “provost
courts” to administer justice in occupied regions, and Lincoln himself approved the
creation, by U.S. military authorities, of a provisional civil court in occupied Louisiana.60
Later, of course, Article 43 of the Hague Regulations declared the obligation of an
occupying commander to “take all the measures in his power to restore, and ensure, as
far as possible, public order and safety, while respecting, unless absolutely prevented,
the laws in force in the country.”61 The American army, however, had already discovered
that military necessity itself often dictated the need for such measures.
Recently, peacekeeping forces in Somalia and the former Yugoslavia have found them
selves facing similar issues. International peacekeeping forces have occasionally exercised
law enforcement powers over a population or territory.62 If such powers are not included
in the force’s mandate, however, pressure may build for the force to assume them as a
matter of necessity.
In particular, such pressure has arisen when an effective civilian government that the
peacekeeping force can deal with is lacking. In 1993, for example, substantial military
resources were devoted to an unsuccessful effort to arrest clan leader Mohamed Aidid
for attacks on the United Nations peacekeeping force in Somalia.63 Tl^e civil chaos in
Somalia undoubtedly played a role in undermining the discipline of the peacekeeping
forces there, some of whom committed atrocities against the very population they were
sent to protect.
Similar, but less serious, difficulties have been raised by the presence in Bosnia of
persons charged with war crimes by the International Criminal Tribunal for the former
Yugoslavia. The official policy of the Stabilization Force maintained by the United Nations
and the North Atlantic Treaty Organization in the former Yugoslavia is that it should
not go out of its way to apprehend such persons. On the other hand, the force has
been directed to detain these suspects if they are encountered in the course of routine
peacekeeping operations. Pressure has nevertheless mounted for the force to take a more
active role in pursuing war criminals, and on at least one occasion NATO responded to
that pressure by launching a special operation that captured one suspect and killed
another.65
During the Civil War, President Lincoln and his commanders turned to the doctrine
of military necessity as authority for provost courts when they found that their armies
59 Annual Message to Congress (Dec. 3, 1861), in L inc o ln , supra note 22, at 279, 287.
M) See H yman , supra note 8, at 199-202.
(>1 Regulations, supra note 18, Art. 43. For extended commentary on this obligation, see B envenisti , supra
note 31.
62 See T he C harter of the U nited N atio ns : A C ommentary 588 (Bruno Simma ed., 1994).
63 See Louis F isher, P re sid e n tia l W ar P ow er 153-54 (1995).
64 See Ben Barber, U.S. officers concede knowing of atrocities, W ash. Times, July 27, 1997, at A l. “ ‘There was
constant pressure from the looters and thieves,’ Gen. Zinni said. ‘They attempted to snatch weapons and food.
We had to be constantly on the alert. At night they came over the walls to steal.’ ” Id. at A10. Lt. General
Tony Zinni had been director of operations of the UN force in Somalia. Cf T h e C h a r te r o f t h e U n ite d
N a tio n s, supra note 62, at 586 (“ UNOSOM soldiers also killed civilians. All this led to a very serious political
controversy over the mandate of the force.”).
65 See Bradley Graham & Rick Atkinson, NATO Remains Uncertain About Future Pursuit of Suspected War Criminals,
W ash . P o st , July 19, 1997, at A16; Bradley Graham, U.S. Push Against Bosnian War Criminals Urged, W ash .
P o st , July 16, 1997, at A15; Edward Cody & Jonathan C. Randal, NATO Moves on War Crimes Suspects, W ash .
P o st , July 11, 1997, at Al; John F. Harris 8c Dana Priest, Alliance Gets Aggressive on Arrests, id.
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LINCOLN, LIEBER AND THE LAWS OF WAR
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could not operate effectively in a lawless environment. Despite the negative reaction
that followed the futile effort to capture General Aidid in Somalia, it seems likely that
similar legal powers may be inferred where civil chaos prevents international peacekeep
ers from functioning.66
Religion
Religion was another subject that President Lincoln had placed off limits to Union
commanders in the Civil War. In 1862, for example, federal military authorities ordered
the Reverend Samuel McPheeters of the First Presbyterian Church in Saint Louis to
leave Missouri because of his “rebel wife, rebel relatives” and Confederate sympathies.67
Control of his church was also taken away from the regular trustees. Mr. McPheeters
went to Washington to appeal personally to the President, who thereafter wrote to the
federal commander in Missouri that, “after talking to him, I tell you frankly, I believe
he does sympathize with the rebels; but the question remains whether such a man, of
unquestioned good moral character, . . . can, with safety to the government be exiled,
upon the suspicion of his secret sympathies.”68 Despite these misgivings, Lincoln de
ferred to the commander “on the spot . . . if, after all, you think the public good
requires his removal.”69 On one point, however, Lincoln was firm:
But I must add that the U.S. government must not, as by this order, undertake
to run the churches. When an individual, in a church or out of it, becomes dangerous
to the public interest, he must be checked; but let the churches, as such[,] take
care of themselves. It will not do for the U.S. to appoint Trustees, Supervisors, or
other agents for the churches.70
He made the point in the last month of the war, in relation to churches in occupied
Louisiana; church property may be seized for military reasons, but church institutions
should not be controlled by the military.
While I leave this case to the discretion of Gen. Banks, my view is, that the U.S.
should not appoint trustees for or in any way take charge of any church as such. If
the building is needed for military purposes, take it; if it is not so needed, let its
church people have it, dealing with any disloyal people among them, as you deal
with other disloyal people.71
A similar aversion to dealing with military problems on the basis of religious concerns
was evidenced by the President’s revocation of General Grant’s bizarre order expelling
“Jews as a class” from his area of operations.72
Destruction of Property
Lincoln’s letters to Senator Browning and General Reynolds reflect a distinct expan
sion of his thought on the actions military necessity would justify. In 1861 Lincoln
66 A U.S. Department of Defense spokesman has already stated that the NATO Stabilization Force in Bosnia
is authorized to use “whatever means they need to” in order to detain indicted war criminals. S^News Briefing
by Assistant Secretary of Defense Kenneth Bacon, Dep’t of Defense News Release (June 11, 1996).
67 See R ich ard S. B r o w n le e, G ray G h o sts o f t h e C o n fed er a c y 164 (U. of Missouri 1984) (1958).
68 Letter, Lincoln to Samuel R. Curtis (Jan. 2, 1863), in L in c o ln , supra note 22, at 426, 4 2 6 -2 7 .
69 Id. at 427. General Curtis responded to the President’s unsubtle hint and revoked the exile order. See
B r o w n le e, supra note 67, at 164.
70 Letter, Lincoln to Curtis, supra note 68, at 427. Almost a year later, Lincoln received a petition from
several citizens of Saint Louis to restore McPheeters “to all his ecclesiastical rights.” Clearly irritated, and
suspecting that he was being drawn into an internal dispute between members of the congregation, he replied
by quoting his directions to General Curtis, and went on to write that he had “never interfered, nor thought
of interfering, as to who shall preach in any church . . . . If any one is so interfering, by color of my authority,
I would like to have it specifically made known to m e.” Letter, Lincoln to Oliver D. Filley (Dec. 22, 1863), in
L in c o ln , supra note 22, at 562, 563.
71 Endorsement Concerning New Orleans Churches (Mar. 15, 1864), in id. at 580.
72 See, e.g., M ark N eely, T h e L ast B e st H ope o f E a r th 149 (1993).
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conceived of military necessity as covering the seizure of resources primarily for the use
of U.S. forces. By 1865, however, he was noting that “ [cjotton and other staple articles
of commerce are seizable for military reasons.” How did seizure of “staple articles of
commerce” come to be considered a matter of military necessity?
At the beginning of the war, Lincoln recognized military necessity as a limitation on
the old doctrine that all private or public property of the enemy could be confiscated.
This restraint gradually loosened as the war progressed. Thus, in his proclamation calling
out the militia after the fall of Fort Sumter, the President ordered that “ the utmost care
. . . be observed . . .to avoid any devastation, any destruction of, or interference with,
property, or any disturbance of peaceful citizens in any part of the country.”73 A year
later, however, he ordered federal commanders to “seize and use any property, real or
personal, which may be necessary or convenient for their several commands, as supplies,
or for other military purposes.”74 A year after that, defending the Emancipation Procla
mation as a proper war measure, he argued that depriving the enemy of usable resources
was justified by military necessity:
The most that can be said, if so much, is, that slaves are property. Is there— has
there ever been—any question that by the law of war, property, both of enemies
and friends, may be taken when needed? And is it not needed whenever taking it,
helps us, or hurts the enemy? Armies, the world over, destroy enemies’ property
when they can not use it; and even destroy their own to keep it from the enemy?5
The seizure and destruction of cotton was a logical step in the expansion of military
necessity. Union armies seized cotton not for their own use, or because of its intrinsic
military value to the Confederate army, but to deny it to the enemy as an “article of
commerce.” As an agricultural region with little manufacturing capability, the Confeder
acy relied on exports, primarily of cotton, to finance foreign purchases of arms and
other war materiel. Lincoln was therefore claiming a right, under military necessity, to
destroy not merely military goods, but economic resources that could buy those goods.
This right was upheld by a U.S.-British arbitral tribunal after the war. Several claims
were submitted for the destruction of British-owned cotton by federal raiding parties in
the South. The United States successfully defended the destruction as justified by military
necessity, in light of the special position of cotton as the South’s staple crop.76 Other cases
upholding the destruction of British-owned economic resources in the South include the
burning of a sawmill that had provided ties for Confederate railroads77 and the razing
of an iron and brass foundry.78
By the end of the Civil War, then, the scope of destruction authorized by military
necessity extended not only to property of direct military use, but, as Lincoln had written
to Conkling, to any property that “helps us, or hurts the enemy,” including the economic
infrastructure supporting the enemy war effort. The destructive implications of this
doctrine were not fully realized until the development of strategic bombing in the
twentieth century.79
73 Proclamation Calling Militia and Convening Congress (Apr. 15, 1861), in L inc o ln , supra note 22, at 232.
74 Lincoln, order to Edwin M. Stanton (July 22, 1862), in id. at 342, 342-43.
75 Letter, Lincoln to James C. Conkling (Aug. 26, 1863), in id. at 495, 497 (emphasis added).
76 See Report o f the U.S. Agent, 6 Papers R elating to the T reaty of W ash ing to n 52-53 (1874). The
widely recognized position o f cotton in the Southern econom y had also led even conservative U n ion generals
like M cClellan to approve its destruction. See G rimsley, supra note 10, at 55-56.
77 See Cox’s Case (U.S. v. Gr. Brit.), 6 P apers R elating to th e T reaty of W a sh in g t o n , supra note
76, at 51.
78 Smyth’s Case (U.S. v. Gr. Brit.), id.
79 Article 2 of the Hague Convention [IX] on Bombardment by Naval Forces in Time of War, Oct. 18,1907, 36
Stat. 2351, reprinted in A rmed C onflicts , supra note 2, at 811, retreated from Civil War practice by authorizing
destruction only of “military or naval establishments, depots of arms or war materiel, workshops or plant which
could be utilized for the needs of the hostile fleet or army.” Article 24(2) of the draft 1922/23 Hague Rules
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The Expanding Limits of Military Necessity
After beginning the Civil War with a promise to respect private property and not
interfere with slavery in the rebellious states, President Lincoln eventually supported, as
military necessities, the destruction of cotton, railroads and other economic resources,
and the freeing of all slaves in rebel areas. The continually expanding reach of military
necessity might seem to support Confederate Secretary of War Seddon’s assertion that
the doctrine was merely codified mischief. This progression was not an inherent process,
or a case of Lincoln’s gradually learning the “true” limits of military necessity. Rather, the
proper limits of military necessity changed as Lincoln’s national war strategy developed.
The historian James B. McPherson has identified four stages in this development. At
first, Lincoln viewed the war as a domestic insurrection whose suppression would require
little more than a police action. This limited war strategy was based on the assumption
that a majority of Southerners were loyal to the Union, and had merely been swept away
by the passions of the moment when they voted for secession.80 This strategy ended with
the Union defeat at Bull Run, Virginia, in 1861. It was replaced by a second limited war
strategy that aimed at conquering and occupying Confederate territory, without altering
slavery or other fundamental Southern institutions.81 In 1862 this strategy was abandoned
in the face of Confederate victories in battle, to be replaced in turn by a strategy that
focused on the destruction of the Confederate armies. Almost simultaneously, the final
stage was reached, extending to the destruction of any resources, including the institution
of slavery, that supported those armies, and the utilization of any resources, including
the enlistment of freedmen, that could support the federal armies.82 In the starkest
terms, private property and Southern institutions would be destroyed as a means of
destroying Southern armies.
T h e C o n t in u in g L im it s o f M il it a r y N e c e ss it y
It has recently been suggested that the “object of [a] war” is no longer a suitable
factor to consider in assessing the military necessity of an action, because “its meaning
may be indefinitely extended,” which permits greater destruction as the war aims expand
on one or both sides.83 While superficially appealing, this suggestion, if generally
adopted, could easily have the opposite effect to that intended. Applying military neces
sity without regard to the political goals of the conflict would inevitably authorize all
of Air Warfare were similarly restrictive of attacks against economic infrastructure, authorizing destruction
only of “factories constituting important and well-known centres engaged in the manufacture of arms, ammuni
tion or distinctively military supplies; [and] lines of communication or transportation used for military pur
poses.” Armed C o n flic ts , supra, at 207, 210. The Hague Rules never entered into force, and were disregarded
by all sides in World War II. See, e.g., M cD o u g a l 8c F elicia n o , supra note 6, at 640-52. The current state of
the law is summarized in the official U.S. Air Force publication on the law of war as follows:
Controversy exists over whether, and the circumstances under w hich,. . . objects, such as civilian transpor
tation and communications systems, dams and dikes can be classified properly as military objectives. The
inherent nature of the object is not controlling since even a traditionally civilian object, such as a civilian
house, can be a military objective when it is occupied and used by military forces during an armed
engagement. A key factor in classification of objects as military objectives is whether they make an effective
contribution to an adversary’s military action so that their capture, destruction or neutralization offers a
definite military advantage in the circumstances ruling at the time. . . . Destruction as an end in itself is
a violation of international law, and there must be some reasonable connection between the destruction
of property and the overcoming of enemy military forces.
U.S. D e p t of the A ir F orce , supra note 6, para. 5-3b(2) (citation omitted).
80 See McPherson, supra note 10, at 41-42.
81 See id. at 43-44.
82 See id. at 45-48.
83 Henri Meyrowitz, The Principle of Superfluous Injury or Unnecessary Suffering, In t ’l Rev . R ed C ross , Mar.Apr. 1994, at 98, 106-07.
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destruction that could be linked in any way to military advantage; in the eyes of the law,
all wars would be total wars.
To be sure, the objects of wars have always tended to expand or shift in ways that
permit greater destruction at the end of conflicts than at the beginning. Yet this process
has not always been taken to its logical extreme, and even toward the end of lengthy
conflicts, certain levels of destruction may be considered unnecessary in light of the
belligerents’ goals. If military necessity were completely cut off from the objects of war,
these residual restraints would presumably be jettisoned as well.
As an example, consider again the strategic stages Professor McPherson identified in
the American Civil War. At each stage of strategy, military necessity dictated the imposi
tion of different limits on the destruction and seizure of civilian property. Even at the
final stage, destruction was not indiscriminate and military necessity did not amount to
Kriegsraison. The fundamental distinction between combatants and noncombatants was
maintained throughout the war.84 Even in the final stage, President Lincoln insisted on
a rational connection between military action and defeat of the enemy. He consistently
rejected military interference with religious institutions and the destruction of property
merely to harass or punish persons of opposing loyalties.
The status of private houses and their furnishings is one “bright line” that most
Union officers and soldiers observed.85 As Lincoln stated, “Cotton and other staple
articles of commerce are seizable for military reasons. Dwelling-houses 8c furniture are
seldom so.”86
In Virginia, General David Hunter’s burning of the home of former Governor John
Letcher in 1864 was widely criticized in both the North and the South. Confederate
forces then burned Chambersburg, Pennsylvania, in retaliation.87 Thereafter, President
84 .S^ G rim sley, supra note 10, at 222-25. After reviewing the historical evidence, Grimsley rejects characteriz
ing the Civil War as a “total war” in the 20th-century sense.
85 See id. at 174-79, 198-99. The march of Sherman’s army through South Carolina was an exception. The
average federal soldier regarded South Carolina as responsible for the war, and destruction of private houses
was far more widespread than it had been in Georgia, or would later be in North Carolina. Id. at 201-02.
86 See text at note 56 supra. Even General Sherman, whose campaigns in Georgia and the Carolinas have
become a byword for “hard,” destructive war, ordered that private homes were not to be molested:
Soldiers must not enter the dwellings of the inhabitants, or commit any trespass; but, during a halt or
camp, they may be permitted to gather turnips, potatoes, and other vegetables, and to drive in stock in
sight of their camp. To regular foraging-parties must be intrusted [ mc] the gathering of provisions and
forage, at any distance from the road traveled.
Burke Davis, Sherman s March 31 (Vintage Books 1988) (1980) (quoting Sherman’s Field Orders, Nov. 14,
1864). Unfortunately, General Sherman did little to enforce this order, and may have correctly concluded
that its enforcement would be impossible in a volunteer army of individualistic 19th-century Americans. Most
of the looting and destruction of private homes on Sherman’s march was carried out by unofficial foraging
parties. See Grimsley, supra note 10, at 191-93; Davis, supra, at 36-37. One of the weaknesses of the Lieber
Code was that it did not deal with a commander’s responsibility for ensuring that his soldiers comply with
the laws of war. The issue was not widely recognized until the war crimes trials following World War II. See,
e.g., The High Command Case, 15 ILR 376, 384-92 (U.S. Mil. Trib. Nuremberg, 1948); In reYamashita, 327
U.S. 1 (1946). Query whether Sherman would be responsible under contemporary concepts of command
responsibility. Some of Sherman’s subordinate generals did punish looting in a few cases, see Davis, supra, at
42-43, and even Sherman himself made some efforts to prevent looting and return stolen property, id. at
189-90. During the night of February 17-18, 1865, when Columbia, South Carolina, was burned and looted,
370 looters were arrested and 30 wounded by military guards. On the other hand, in at least one incident
General Sherman had direct knowledge of the destruction of an abandoned private home (it was set on fire
as he left after having slept there) and took no action to punish those responsible, see id. at 142. For the
current state of international law on this issue, see W. Hays Parks, Command Responsibility for War Crimes, Mil.
L. Rev., Fall 1973, at 1.
87 See G rimsley , supra note 10, at 179-80. Hunter claimed that the house had been burned in lawful
retaliation for Letcher’s effort to incite guerrilla warfare in Hunter’s rear:
I found here a violent and inflammatory proclamation from John Letcher, lately Governor of Virginia,
inciting the population of the country to rise and wage a guerrilla warfare on my troops, and ascertaining
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Lincoln asked General Ulysses Grant to conclude an agreement with Confederate Com
manding General Robert E. Lee “for a mutual discontinuance of house-burning and
other destruction of private property.”88
By proposing, even at the latest stages of the Civil War, that special consideration be
given to the treatment of private houses, Lincoln was taking a position that would
continue to live into the twentieth century. The 1907 Hague Regulations on land warfare
specifically forbade bombardment of undefended “dwellings,” as did the 1907 Conven
tion on naval bombardment.89 The commission of jurists that drafted the 1923 Rules of
Air Warfare similarly listed “dwellings” as immune from air attack if situated outside
the neighborhood of land operations.90 Most recently, Protocol Additional I to the
Geneva Conventions cites “a house or other dwelling” as the type of objects that should
be “presumed” not to be military objectives.91
One need not go back as far as the Civil War to see how a close link between the
objectives of war and the principle of military necessity can restrain destruction even
late in a lengthy conflict. For example, during most of the Korean War of 1950-1953,
irrigation dams in North Korea were not subject to aerial attack. By 1953, however, an
apparent impasse had been reached in the Panmunjom truce negotiations. The targeting
staff at U.S. Far East Air Force (FEAF) proposed attacking these dams so that the resulting
flooding would destroy much of the North Korean rice crop. The Commanding General
of FEAF, however, was unwilling to approve attacks against enemy food crops as such,
though he did approve air strikes against dams located where the flooding would cut
enemy lines of communication. Attacks against food crops were considered a possible
option if the enemy should entirely break off the truce negotiations.92 In fact, a truce
was concluded in 1953, and food was never directly targeted.
Throughout most of the Korean War, the United Nations command did not regard
destruction of the irrigation dams, in legal terminology, to be a military necessity. In
the final days of the conflict, when it became clear that heavier destruction of military
objectives was necessary to meet the goals of the war, some attacks were authorized, but
there was still no military necessity for attacking food crops as such.
A similar set of events occurred nineteen years later, at the end of U.S. participation
in the Vietnam conflict. As noted above,93 a considerable number of military targets in
the vicinity of Hanoi and Haiphong had never been subject to air attack. When peace
negotiations broke down in October 1972, President Nixon in effect decided that this
new situation created a military necessity for the destruction of those targets, and they
were attacked.
that after having advised his fellow-citizens to this course the ex-Governor had himself ignominiously
taken to flight, I ordered his property to be burned under my order, published May 24, against persons
practicing or abetting such unlawful and uncivilized warfare.
Report of Major General David Hunter (Aug. 8, 1864), in 37 W ar of the R ebellion : A C om pilation of th e
O fficial R ecords of the U nio n and C onfederate A rmies , pt. 1, at 96, 97 (Robert Scott ed., ser. 1, 1891).
88 Telegram, Lincoln to Lt. General Grant (Aug. 14, 1864), in L inc o ln , supra note 22, at 427, 428.
89 See Regulations, supra note 18, Art. 25; Convention Concerning Bombardment by Naval Forces in Time
of War, supra note 79, Art. 1.
90 See Rules of Air Warfare, supra note 79, Art. 24(3).
91 See Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of
Victims of International Armed Conflicts, opened for signature Dec. 12, 1977, Art. 52, 1125 UNTS 3, reprinted in
A rmed C onflicts , supra note 2, at 621.
92 See R obert F utrell , T he U nited S tates A ir F orce in Korea 1950-1953, at 666-69 (rev. ed. 1983).
The FEAF staff argued that the rice, most of which was destined for the enemy armed forces, was a legitimate
military target, a position with respectable roots in the Lieber Code, supra note 4, Article 17: “War is not
carried on by arms alone. It is lawful to starve the hostile belligerent, armed or unarmed, so that it leads to
the speedier subjection of the enemy.”
See text at notes 48-50 supra.
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This is not the place to discuss whether or not the previous U.S. assessment (i.e., that
attacking Hanoi and Haiphong was not militarily necessary) was correct. The point is
that such a judgment had been honestly made by President Johnson, and that this
decision effectively limited certain types of destruction until the last days of American
participation in the Vietnam War.
C o n c l u s io n : T h e P r in c ip l e T o d a y , a n d in t h e F u t u r e
In military manuals and academic texts, military necessity is formally acknowledged
as one of the primary foundations of the modern law of war. One would expect, therefore,
that the principle would have been frequently invoked whenever that body of law has
faced new challenges, such as protecting the environment during combat or responding
to the widespread abuse of land mines in the 1980s.
In fact, however, the principle has been notably absent from discussion of these issues.
That military necessity was originally a limit on state action, and should still function as
a limit, seems to have been forgotten. The modern denigration of military necessity goes
back at least to the Nuremberg trials after World War II, where some defendants argued
that military necessity justified their atrocities against civilian populations.94 In an echo
of Confederate criticisms of 130 years ago, military necessity is widely regarded today as
an insidious doctrine invoked to justify almost any outrage. As a result, the principle has
not been allowed to play the creative role that it is capable of playing.
The U.S. Government’s response to the land-mine crisis serves as an example. This
humanitarian crisis arose from the indiscriminate wartime use of antipersonnel land
mines, which have endangered civilians for years or even decades after the conflict has
ended. Part of the U.S. response to this situation was a presidential prohibition on the
use of antipersonnel land mines by the American armed forces, unless the mines are
fitted with devices that will neutralize them after a set period of time.95
The only exception to this policy allows the use of permanent land mines in defense
of the Korean Demilitarized Zone (DMZ). Since 1953 this zone has followed the course
of the cease-fire line that ended hostilities between North and South Korea. In the
context of a long-standing, heavily fortified de facto demarcation line separating hostile
armies, permanent land mines have obvious military advantages, while the danger to
civilians is low.
On its face, this policy appears to be a clear example of the application of the principle
of military necessity. The President’s military advisers presumably told him that such
mines were necessary in Korea but not elsewhere, and the President acted accordingly.
Nowhere, however, is this or any other legal principle invoked as a basis for the policy.
The President’s ban on land-mine use is nothing more than a policy, albeit one adopted
in the hope of encouraging the negotiation of a legally binding ban on antipersonnel
land mines. As evidence of United States practice in international law, its juridical value
is low, since its adoption was not anchored to any acknowledged legal obligation.
From a juridical standpoint, the land-mine policy would have been much stronger
had it been clearly based on the principle of military necessity. Suppose the President
had adopted a slightly different approach. He might have announced that, in view of
the surge in civilian suffering produced by the indiscriminate use of land mines in recent
conflicts, he had asked the Secretary of Defense and the Joint Chiefs of Staff to apply
the principle of military necessity to reassessing the military need for permanent antiper
sonnel mines. In response, he could say, they had advised him that in only one location—
94 See, e.g., In re Von Leeb (High Command Case), 15 ILR 376, 397 (U.S. Mil. Trib. Nuremberg, 1948); In
re List (Hostages Trial), id. at 632, 646-47 (U.S. Mil. Trib. Nuremberg, 1948).
95 See Statement by President Bill Clinton (May 16, 1996), in New U.S. Mine Policy, D efense Issues No. 40.
1998]
LINCOLN, LIEBER AND THE LAWS OF WAR
231
the Korean DMZ—was the use of such weapons still necessary. As formulated in the
Lieber Code and contemporary military manuals, military necessity permits only that
degree of force necessary to defeat the enemy.96 In accordance with the country’s obliga
tions under international humanitarian law, the President would therefore order an end
to the use of permanent antipersonnel mines by the United States Armed Forces. As
an act reflecting obligations under an existing legal principle, this juridically stronger
approach would have been a mightier blow against the use of antipersonnel land mines.
Discussions of environmental warfare have also seen a reluctance to apply the principle
of military necessity as a limitation on state action. After the 1991 Persian Gulf war, the
U.S. Congress requested that the Defense Department assess various issues that had
arisen during that conflict, including the legality of Iraqi “environmental terrorism.”
After consultation with allied governments, the Department reported that Iraq’s deliber
ate release of crude oil into the Persian Gulf was a war crime under existing international
law because it had caused unnecessary destruction of property under Article 23(g) of
the 1907 Hague Regulations.97 While not incorrect, this analysis focused on a collateral
effect (loss of property) rather than the central problem (injury to the gulf ecosystem).
It is the equivalent, on the international level, of charging a gangster with failure to pay
income taxes rather than with the extortion, usury, drug dealing and other crimes that
gave rise to the income. What is even more disturbing is that this analysis may suggest
that the wild animal and plant life of the gulf are entitled to no protection under the
customary laws of war, because they are neither the public property of any government
nor the private property of any person.
Iraq’s environmental attack appears to have served no military purpose whatsoever,
and was a palpable violation of the principle of military necessity. Yet the principle was
not invoked in this part of the Defense Department’s report to Congress, even though
it would have stated a broader and more appropriate legal basis for denouncing Iraq’s
action.
Today, military necessity is widely regarded as something that must be overcome or
ignored if international humanitarian law is to develop, and its original role as a limit
on military action has been forgotten. As a result, the principle has not been applied in
new situations where it could serve as a significant legal restraint until more specific
treaty rules or customs are established.
The rem inder that military necessity can limit the destruction of war, beyond serv
ing as a justification for destruction, is the most im portant legacy of Lieber’s develop
m ent and Lincoln’s application of military necessity over 130 years ago. The combina
tion of political prudence, moral care and military realism with which Lincoln used
military necessity should serve as a model for military and civilian officials so that
the principle may again be applied in situations not governed by any specific rule of
hum anitarian law.
96 See U.S. D ep ’t of the N avy, T he C om m ander ’s H andbo ok o n the Law of N aval O perations , para.
6.2.5.5.2 (Naval Warfare Pub. No. 1-14M , 1995); FM 27-10, supra note 6, para. 3.a,; Lieber Code, supra note
4, Art. 14.
97 See Department of Defense Report to Congress on the Conduct of the Persian Gulf War— Appendix on
the Role of the Law of War, 31 ILM 612, 636-37 (1992); Regulations, supra note 18, Art. 23(g).
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