By Rudy Barnes, Jr.
Samuel Moyn has asserted that the laws of war that protect civilians and their property from the ravages of war have caused America’s endless wars by making war more humane. Tolstoy shares Moyn’s negative view of the law of war, and both are wrong. Making war less terrible with humanitarian standards has not promoted war, but discouraged it.
Prussian General Clausewitz once famously observed that War is an extension of politics by other means. In America both political and military legitimacy require compliance with the law, and legitimacy is measured by public support. Since America’s Civil War, the law of war has protected civilians and their property as a requirement of military legitimacy.
In 1863 the U.S. Army issued General Order 100 providing for the protection of civilians and their property. It was written by Francis Lieber, who had moved from South Carolina College to Columbia University in New York City in 1853. But the Lieber Code was rejected by General William Tecumseh Sherman who proclaimed “War is Hell” and began his infamous march, burning Atlanta and Columbia, S.C. and destroying civilian property along the way.
The Lieber Code should have revolutionized American warfare with its humanitarian protections for civilians and their property in wartime, but they were ignored more than followed by U.S. forces in the Civil War and World War II. Ironically, General Robert E. Lee showed more respect for enemy civilians and their property in the North than did Sherman in the South.
If not humanitarian laws, what has caused America’s endless wars? Technology has deceived Americans into thinking that lethal force can be surgically precise and eliminate most of war’s collateral damage; but failures in intelligence with ”over the horizon” strikes like that of August 29 in Afghanistan have sobered Americans to the ugly reality of civilian casualties.
It has been estimated that 22,000 civilians were killed by American airstrikes in its endless wars since 9/11, and there has been little accountability. Americans elect those who initiate and perpetuate their wars. They should be held accountable for civilian casualties in war, and not blamed on the humanitarian laws of war that prohibit them.
The international law of war applies only to armed conflict between nations. After the U.S. military interventions in Afghanistan and Iraq, U.S. military assistance to the new regimes was in the form of counterinsurgency and counterterrorism operations, and the humanitarian protections of the laws of war continued to apply to all U.S. military operations.
There are many reasons for America’s endless wars. They include advances in military technology and a misplaced public confidence that American exceptionalism can be promoted by military power. Humanitarian laws of war have not been a cause of America’s endless wars; Those wars have now ended--if only temporarily--due to failures in military intelligence and the lack of military legitimacy in the hostile cultural environment of Afghanistan.
Dexter Filkins has cited Professor Samuel Moyn in Humane: How the United States Abandoned Peace and Reinvented War, for the proposition that advances in the Law of War protecting civilians have encouraged America’s endless wars. “The dilemma posed by Moyn belongs to the modern age. Killing is what armies do, and, in the usual course of things, the more they kill the sooner their wars end. For Clausewitz, the Prussian military theorist, the whole point of fighting was not just to repel the enemy but to destroy it; theoretically, at least, war knows no limits. In the United States, generals took a page from Clausewitz, applying maximum force to secure military objectives. During the Civil War, General William Tecumseh Sherman, who set fire to Atlanta [and Columbia], believed he was entitled to do anything in pursuit of victory, because he was fighting against an enemy that had begun an unjust war.
...In the Second World War, Allied and Axis commanders deliberately attacked civilians, in the hope that they could be terrorized into demanding peace. The Allies’ aerial campaign against [Tokyo and] German cities like Hamburg and Dresden killed as many as a half million civilians. ...Must one choose between being against torture and being against war? Moyn suggests that opposing war crimes blinds us to the crime of war. If this is an empirical claim, it’s contradicted by the facts. The invasion of Iraq did inspire demonstrations around the world. ...Moyn’s position might lead us to oppose striking enemy targets with smaller, more accurate bombs because they don’t inspire sufficient public outrage; he is evidently convinced that an effective protest campaign requires a steady and highly visible supply of victims. That logic would favor incinerating entire cities, Tokyo style, if the resulting spectacles of agony lead more people to oppose American power.
To counter Moyn’s arguments, Filkins cites William M. Arkin in The Generals Have no Clothes. “Like Moyn, Arkin focusses on these endless conflicts—what Arkin calls ‘perpetual war’—but his explanation centers on a different culprit. Combat persists, Arkin tells us, because the apparatus of people and ships and bases and satellites and planes and drones and analysts and contractors has grown so vast that it can no longer be understood, much less controlled, by any single person; it has become ‘a gigantic physical superstructure’ that ‘sustains endless warfare.’ The perpetual war, Arkin contends, is ‘a physical machine, and a larger truth, more powerful than whoever is president,’ and the result has been ‘hidden and unintended consequences, provoking the other side, creating crisis, constraining change.’
An organizational logic, more than an ideological one, holds sway, Arkin suggests. Secrecy is central to the contemporary military; few people, even members of Congress who are charged with overseeing the Pentagon, seem to know all the places where Americans are fighting. The military operates bases in more than seventy countries and territories; Special Operations Forces are routinely present in more than ninety. Where Moyn is driven by a photonegative of American exceptionalism—a sense that American power is a singular force of malignity in the world—Arkin is concerned that this perpetual-war machine is at odds with America’s strategic interests. He sees the spread of Al Qaeda and like-minded groups across Asia and Africa as a direct consequence of our attempts to destroy them. Every errant drone strike that kills an innocent invites a fresh wave of recruits.” See https://www.newyorker.com/magazine/2021/09/13/did-making-the-rules-of-war-better-make-the-world-worse?utm_source=nl&utm_brand=tny&utm_.
The following excerpts from Military Legitimacy: MIght and Right in the New Millennium (chapter 1, pages 9-13) illustrate the role of the Lieber Code and conflicting practices of Generals Sherman and Lee:
Total war at home: the burning of Columbia: In 1860 a commitment to preserve the Union motivated President Lincoln to go to war to prevent the secession of the Confederate States of America. At the height of that war in 1863 the U.S. adopted the Lieber Code as General Order No. 100. It was a landmark statement of military legitimacy and civil-military relations that confirmed a principle at the heart of the law of war: those who do not make war should be protected from its harm.18 The Code was written by Francis Lieber, who emigrated to the U.S. from Germany in 1827 after being imprisoned by Prussian police on suspicion of being a revolutionary. He settled in the deep South, assuming a professorship at South Carolina College (now the University of South Carolina) in Columbia, South Carolina. Lieber left the city of Columbia for Columbia University in the 1850s, during a time of political intolerance when southern "fire-eaters" effectively purged many intellectuals who did not embrace their views, including the need to maintain the "peculiar institution" of slavery. Professor Lieber could not have known that his adopted city, Columbia, would be destroyed by the Union Army in 1865 in violation of his Code. The provisions of the Lieber Code then governed military operations as U.S. law, and would become international law when incorporated in the Hague Conventions of 1899 and 1907, and the Geneva Conventions of 1945.
On the Confederate side, General Robert E. Lee exemplified the ideals of chivalry when he moved his army into Maryland and Pennsylvania. The citizens of these states remarked at the perfect discipline of Lee's rag-tag rebels as they marched by their homes. This was the result of instructions given by Lee to his men that reflected his moral conviction that civilians should be spared the ravages of war:
"I cannot hope that heaven will prosper our cause when we are violating its laws. I shall therefore carry on the war in Pennsylvania without offending the sanctions of a high civilization and Christianity."19
Lee treated civilian property with respect. Rather than have his men live off the land, Lee instructed his commissary officers to make formal requisitions when supplies were needed. Lee made a distinction between combatants and noncombatants when he exhorted his troops ‘...to abstain with most scrupulous
care from unnecessary or wanton injury to private property. It must be remembered that we make war only upon armed men.’20
The respect accorded enemy civilians by Lee was in stark contrast to the scorched earth strategy of Union General William Temcumseh Sherman, who had been given the mission of destroying Confederate forces in the deep south while Grant hammered Lee in northern Virginia. General Sherman did not share the philosophy of Lee, nor did his tactics reflect even a hint of chivalry. In fact, while Sherman gave lip service to the Lieber Code, his troops consistently violated its provisions. Sherman was an advocate of total war, having declared his philosophy as early as October 1862. Total war was based on collective responsibility, which allowed for little real distinction between combatants and noncombatants.
Sherman believed the Union must "make the war so terrible" for all rebellious Southerners that they would never again revolt. To accomplish this, the Southerners must "be made to fear us, and dread the passage of our troops through their country."21 After burning Atlanta to the ground, it did not take long for Sherman's men to get the hang of plunder and pillage. By the time they reached Savannah they had destroyed vast areas of the Georgia heartland. But it was just a preview of what awaited the Carolinas. In January 1865, Sherman's 60,000 veteran troops, moved out of Savannah, made a feint toward Charleston and Augusta, and then moved toward Orangeburg and Columbia. Sherman left no doubt that he intended to punish South Carolinians, as they were the first state to secede, and make a special example of Columbia since the act of secession had taken place there.22
In Savannah Sherman promised vengeance for the Union in South Carolina: "I look upon Columbia as quite as bad as Charleston, and I doubt we shall spare the public buildings there as we did in Milledgeville." He also acknowledged the hatred among his men for the Palmetto State: "The truth
is the whole army is burning with an insatiable desire to wreak vengeance upon South Carolina. I almost tremble for her fate, but feel that she deserves all that seems in store for her."23 Along the way to Columbia, Sherman's men demonstrated their talent for plunder, pillage and wanton destruction. In Hardeeville, a church was destroyed piece by piece, with soldiers heckling local residents as the church collapsed.24 "Bummers" were the primary vandals: they were soldiers who did their own thing, but were seldom disciplined for their indiscretions. They were especially fond of destroying pianos with their hatchets, competing to see who could make the most noise, breaking dishes, and dressing up in the finest women's clothes.25
Sherman's army arrived on the banks of the Congaree River opposite Columbia on February 16, 1865, and the next day the Mayor of Columbia, T.J. Goodwyn, surrendered the defenseless city to Sherman. The general and his staff spent the afternoon with notables, but the troops had their own priorities. They
arrived singing ‘Hail Columbia, happy land; if I don't burn you, I'll be damned.’26 The city was awash with liquor, and friendly house slaves were passing it out to the feisty troops as they began their looting sprees. Soon things were out of control, whether by design or accident, and by evening drunken soldiers were torching everything that would burn. There was no doubt that the fires were intentionally set by Union troops. Some hurried from block to block carrying wads of turpentine-soaked cotton, while others interfered with firefighting efforts. The only issue was whether Sherman authorized the destruction or not, and this he vehemently denied. He initially blamed the mayor for the free-flowing liquor, citing the impossibility of controlling his drunken soldiers; but he later blamed General Wade Hampton, a popular native son whose cavalry had been the last Confederate troops to leave Columbia.27 By morning, 84 of the 124 blocks of Columbia had been burned. Included in destruction were churches, an Ursuline convent, all public buildings except the unfinished statehouse, as well as most of the city's private residences, of rich and poor alike. Sherman's reaction, other than disclaiming responsibility, was
the rationale of collective responsibility: "Though I never ordered it, and never wished it, I have never shed any tears over it, because I believe it hastened what we all fought for--the end of the war."28
There were also many reported violations of human dignity, if not assaults, upon the women of Columbia. "An extreme practise followed by a few of the soldiers in looking for valuables hidden on a woman's person was to catch her by the throat and feel in her bosom for a watch or pull up her dress in search of a purse hidden in her girdle or petticoat. Those not so brazen did not hesitate to point a pistol at a woman's head to learn the location of the family heirlooms."29 While there were few reported cases of rape against white women, the same was not true for black women. On the morning of February 18, "their unclothed bodies, bearing the marks of detestable sex crimes, were found about the city."30 After February 17, pillage and plunder became more restrained. But the soldiers never showed any repentance for their acts, and "...made no pretense of hiding their loot. Stolen jewelry and coin were very much in evidence on their persons as they strolled the streets boasting of having burned Columbia."31
When Sherman's men finally left Columbia on February 20, they had earned the lasting enmity of the people of Columbia, the South, and even some Yankees. "Whitlaw Reid, the Ohio politician, called the burning of Columbia 'the most monstrous barbarity of the barbarous march.' The people of Columbia,
in full agreement with Reid, were also positive that one day the Devil 'with wild sardonic grin, will point exultant to a crime which won the prize from SIN.'"32 When the Great War ended at Appomattox later that year. Sherman held to his belief that his punishment of southern civilians contributed to Lee's surrender, although there is little evidence to that effect; but Sherman's total war tactics created a legacy of hatred for him and the Union in the South that would never be forgotten.
Notes 18-32 listed above are provided in a transcript of Military Legitimacy: Might and Right in the New Millennium, by Rudolph C. Barnes, Jr. (1996), and posted in Resources for Religion, Legitimacy and Politics at http://www.religionlegitimacyandpolitics.com/p/resources.html.
On Sherman’s burning of Columbia, see also https://www.thestate.com/news/local/article220228240.html.
“The U.S. military admitted its ‘horrible mistake’ in a Kabul drone strike that killed 10 Afghans August 29.” See https://www.washingtonpost.com/national-security/2021/09/17/drone-strike-kabul-afghanistan/?utm_.
Since 9/11 U.S. airstrikes have killed at least 22,000 civilians, mainly in Afghanistan, Iraq and Syria. “The minimum estimate is around 11,500 civilian deaths in Iraq, 5,700 in Syria and 4,800 in Afghanistan. Additional deaths occurred in Somalia, Yemen, Pakistan and Libya. The maximum estimate by UK NGO Airwars, which analyzed declared U.S. airstrikes since 2001, is more than twice as high at around 48,000. Meanwhile, more than 7,000 U.S. service members and more than 8,000 contractors have died in post 9/11 wars. See https://www.statista.com/chart/25748/us-airstrikes-civilian-casulties/?utm_.