Saturday, November 11, 2023

Musings on the Failure of the Law of War to Protect Civilians in Wartime

By Rudy Barnes, Jr., November 11, 2023

After the October 7 Hamas terrorist attack on Israel, President Biden rushed to commit U.S. aid to support Israel’s “payback” to Hamas.  Biden sent Secretary of State Blinkin to promote a “pause” in Israeli strikes in Gaza to allow civilians to escape the worst violence in north Gaza and for humanitarian aid, but there was no agreement on pauses until November 9.

Biden was right to assure Netanyahu that the U.S. was committed to defend Israel, but wrong to give him a blank check for a Zionist strategy of ”payback.”  Netanyahu has used the precedent of Joshua at Jericho for his strategy of ethnic cleansing of Palestinians in Gaza; but  instead of opposing Netanyahu’s strategy, Biden assured Netanyahu that he was also a Zionist.

How do Americans feel about Biden’s ambivalent actions?  A current poll shows Biden trailing Trump in key states.  Most Americans likely see a similarity between Trump and Netanyahu, and a weakness in Biden failing to oppose Netanyahu’s “eye for an eye” response to the Hamas terrorist attack.  Biden’s actions have raised doubts about his competency.

Biden has said that America will promote humanitarian aid in Gaza, but is not  consistent with military aid to Israel’s IDF that’s killing Palestinian civilians in Gaza.  The first obligation of humanitarian aid in wartime is to end unnecessary suffering among civilians.  By providing aid to IDF combat operations, the U.S. is exacerbating civilian suffering in Gaza.

Biden and Congress need to clarify America’s conflicting objectives in the Israeli-Hamas war--or get out of it.  Unless Congress mandates U.S. involvement in Gaza, America should leave that holy war to religious extremists.  The fact that America has supported Israel in past offensive operations against Islamist extremists should not set a precedent for the future.

Wars are most often the domain of Satan; but there are times when the evils of demagogues like Hitler and Putin must be countered.  America should support Ukraine in its war of national survival against Russia’s unprovoked aggression in Ukraine.  There is a clear distinction between the existential defense of Ukraine and Israel’s payback to Hamas. 

The protection of civilians against the ravages of war is a critical component of the Law of War, and was first applied in the American Civil War.  In 1863 America adopted the Lieber Code as America’s first Law of War, but it was ignored by Union General William Tecumsh Sherman in his infamous march to the sea and the burning of Columbia, S.C. (see notes below).

In WWII America failed to obey the Law of War with the fire bombing of civilian targets in Tokyo and Dresden, and with the infamous nuclear bombing of Hiroshima and Nagasaki.  More recently Russia has egregiously attacked civilian targets in Ukraine; and Israel is now attacking civilian targets in Gaza.  America pioneered the need to protect civilians in wartime in the Lieber Code, but has since been complicit in failing to enforce those protections. 


Notes from chapter 1 of Military Legitimacy: Might and Right in the New Millennium, Frank Cass, 1996, By Rudolph C. Barnes, Jr. (Barnes is a retired Army JAGC officer from Columbia, SC who served two terms on city council, and taught the Law of War on active duty). 

At the height of the American Civil 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. During the War Between the States there were violations of the Lieber Code on both sides; but with the exception of partisans who were beyond the control of regular commanders, violations were rarely egregious and were usually denounced by senior commanders.

On the Confederate side, General Robert E. Lee was not subject to the Lieber Code, but exemplified its 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 " 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

General Sherman's views may have been influenced by Prince Edward's raid into France in 1355; harrying and wasting the South was Sherman's stated objective. 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 had 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

The Union troops did more than burn the city. There were 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

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. To the contrary, Sherman's total war tactics created a hatred for him and the Union that made relations between the North and South difficult for many years. It was a legacy of hate that would take more than a century to heal and would never be forgotten.

End Notes 18-32 to chapter 1 of Military Legitimacy:Might and Right in the New Millennium, By Rudolph C. Barnes, Jr., Frank Cass, 1996. 

18. The Lieber Code defines the limits of military necessity by requiring a distinction be made between combatants as lawful targets and noncombatants, who should be protected from unnecessary suffering. Martin van Creveld has referred to The Lieber Code as "the Union text on international law" and decreed that the rebels would be treated as if engaged in an international conflict. See Creveld, The Transformation of War, supra n 1, a p 41. The following provisions of The Lieber Code were applicable during the War Between the States and remain standards of military legitimacy today: Article 15 describes military necessity as allowing the destruction of "armed enemies, and of other persons whose destruction is incidentally unavoidable in the armed contests of the war."(emphasis in the original) Article 16 goes on to provide that "military necessity does not admit of cruelty."

Article 22 makes the critical distinction between soldier and civilian, "between the private individual belonging to a hostile country and the hostile country itself, with its men in arms. The principle has been more and more acknowledged that the unarmed citizen is to be spared in person, property, and honor as much as the exigencies of war will admit." Article 23 expands on this theme by ensuring that "the inoffensive individual is as little disturbed in his private relations as the commander of the hostile troops can afford to grant in the overruling demands of a vigorous war."

Articles 24 and 25 compare the practice of barbarous armies with that of Europeans and their descendants. "The almost universal rule in remote times was, and continues to be with barbarous armies, that the private individual of the hostile country is destined to suffer every privation of liberty...." In contrast, "In modern regular wars of the Europeans, and their descendants in other portions of the globe, protection of the inoffensive citizen is the rule."

Article 38 prohibits the seizure of private property except for military necessity. Article 42 declares slavery to be against the law of nature, citing Roman law to the effect that "so far as the law of nature is concerned, all men are equal." Article 43 requires that any slave that comes into the hands of U.S. forces be treated as a free person under the shield of the law of nations.

Article 44 prohibits "All wanton violence against persons in the invaded country, destruction of property not commanded by the authorized officer, all robbery, all pillage or sacking, even after taking a place by main force, all rape, wounding, maiming, or killing of such inhabitants, are prohibited under the penalty of death."

Article 155 requires that the distinction between combatants and noncombatants in regular war be applied to a government in rebellion, and that military commanders protect loyal citizens. Disloyal citizens can be made to bear the burden of war, but this does not authorize violations of their rights under previous provisions.

The above provisions are part of the 157 articles of the Lieber Code, General Order N. 100, dated April 24, 1863, published in The Military Laws of the United States, War Department Document No. 64 (Washington, Government printing Office, 1897), pp 779-799. They have been incorporated in the 1949 Geneva Convention Relative to the Protection of Civilians in Time of War, which is set forth in FM 27-10, The Law of Land Warfare (July 1956). But there is ambiguity over the treatment of enemy civilians in this Army FM; see discussion in note 20 to chapter 4, infra.

19. Shelby Foote, The Civil War, Volume 2: Fredericksburg to Meridian (Random House, New York, 1986), p 444 (hereinafter The Civil War).

20. Lee also told his men "we cannot take vengeance for the wrongs our people have suffered without lowering ourselves in the eyes of all whose abhorrence has been excited by the atrocities of our enemies..." Idem. The Operational Law Handbook (JA 422), Center for Law and Military Operations and International Law Division, The Judge Advocate General's School, Charlottesvill, VA (1993), cites the following quotes from General Lee and General Sherman as a contrast in command:

"No greater disgrace can befall the army and through it our whole people, than the perpetration of barbarous outrages upon the innocent and defenseless. Such proceedings not only disgrace the perpetrators and all connected to them, but are subversive of the discipline and efficiency of the army, and destructive of the ends of our movement... [T]he duties exacted of us by civilization and Christianity are not less obligatory in the country of the enemy than in our own." (General Lee on marching into Pennsylvania) "I sincerely believe that the whole United States, North and South, would rejoice to have this army turned loose on South Carolina, to devastate that state in the manner we have done in Georgia." (General Sherman marching into South Carolina).

21. John G. Barrett, Sherman's March Through the Carolinas (Chapel Hill, University of North Carolina Press, 1956), pp 15, 16 (hereinafter Sherman's March).

22. Ibid, p 38.

23. The Civil War, pp 753, 754.

24. Sherman's March, p 53.

25. Ibid, p 55.

26. Ibid, p 75.

27. Sherman's March, pp 81-90; The Civil War, pp 793-796.

28. Sherman's March, p 91; The Civil War, p 795.

29. Sherman's March, p 85.

30. Idem.

31. Ibid, p 92.

32. Ibid, p 89.

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