From Prussia with Love

This is a transcript from an earlier broadcast of this episode. There may be slight differences in wording and content.

BRIAN: We’re back with BackStory. I’m Brain Balogh here with friends and co-hosts, Ed Ayers–

ED: Hello.

BRIAN: And Peter Onuf.

PETER: Hey, Brian.

BRIAN: Today, we’re talking about the rules of war in American history– who makes them, who breaks them, how do we even decide what’s fair in the first place?

ED: Today, the Geneva Conventions are the gold standard for international humanitarian law. They say what can and cannot be done to prisoners of war, to civilians, and to the injured during wartime. What you may not realize is that these laws took their modern shape in the American Civil War. It was during this war that Francis Lieber, a Prussian immigrant with ties to both the North and the South, was asked to draft a comprehensive code.

Eric Mennel has the story.

FEMALE SPEAKER: Article 79– every captured wounded enemy shall be medically treated according to the ability of the medical staff.

ERIC MENNEL: When Francis Lieber was 17, he was shot through the neck. He was from Prussia, modern day Germany. And he was fighting against Napoleon’s armies in Belgium.

MALE SPEAKER: I suddenly experienced a sensation, as if my whole body were compressed in my head. And this, like a ball, were quivering in the air. I could feel the existence of nothing else. It was a most painful sensation.

ERIC MENNEL: Lieber then asked a fellow soldier to put him out of his misery, to shoot him dead. But the soldier wouldn’t. A few minutes later, that soldier was shot in both kneecaps. He died, while somehow Lieber survived. Lieber spent the next several years studying politics and philosophy in Europe.

He hoped to get a big city university job in the United States, but the market for Prussian theorists with revolutionary tendencies was slim. And so in 1835, after a few years in Boston and Philly, he had to take a job at the New South Carolina college in the then small town of Columbia. He hated it.

He referred to it as his exile.

MALE SPEAKER: I live in the South, it is true. But with respect to culture and intellectual life, I might as well be in Siberia.

ERIC MENNEL: But over the next 20 years, the years leading up to the Civil War, it would become increasingly clear that a man longing for the North but laying down roots in the south, that was exactly the kind of man you’d want writing the laws of war.

FEMALE SPEAKER: Article 42– slavery, complicating and confounding the ideas of property and of personality exists according to municipal or local law only. The law of nature and nations has never acknowledged it.

ERIC MENNEL: Francis Lieber owned and rented slaves to work in his home. He wrote about them in his diary.

MALE SPEAKER: Today Tom, as we call him, entered our service. He is about 14 years old, and we pay his master $4.50 a month.

ERIC MENNEL: But as the entry continues, it becomes clear that Lieber’s dealings with slavery are complicated.

MALE SPEAKER: The little boy brings with him a blanket, which is all he ever had to sleep upon. He has but one shirt. Slavery is abominable in every respect. It is a dirty, fowl thing.

ERIC MENNEL: In all of his writings to himself and his friends in the North, Liebers seems to find slavery repulsive. And yet he participated. Perhaps he felt he needed to fit in. He was a prominent professor at a prominent school in a state where slavery was a given. And he had political ambitions. He wanted to be the president of the university.

So for the 20 years he spent in South Carolina, he paid for slaves, all the while cursing the act under his breath. Though for Lieber’s oldest son, Oscar, life in the South was less complicated. He grew up there. And so in 1856, when Francis Lieber was finally asked to come back north to take a job at Columbia University, the family split. Lieber, his wife, and two younger sons moved, while Oscar, the oldest, stayed behind.

FEMALE SPEAKER: Article 21– the citizen or native of a hostile country is thus an enemy and as such is subjected to the hardships of the war.

ERIC MENNEL: When the Civil War began in 1861, all three of Lieber’s sons decided to fight, his two youngest for the North, and Oscar for the south. Meanwhile, Francis Lieber started lecturing at Columbia. His series for that fall? The laws of war.

It’s something he had been thinking about since his time fighting Napoleon, and people were fascinated. The New York Times published the lectures as they were delivered. The Civil War was posing all sorts of new legal problems, and Lieber was offering a fresh take on how to solve those problems. The Lincoln administration took notice.

They ask Lieber to consult on the issue of guerrilla warfare in Missouri. Lots of men dressed as civilians were attacking Union soldiers and wreaking havoc across the state. The Confederacy had given its blessing to these gorillas, which put the Union in a bind. Should they treat these men as legitimate soldiers or as criminals?

The old way of thinking was that all you needed to be considered legitimate was the blessing of a real army. Francis Lieber said no. If you want to be treated as a soldier, you need to look like one. You need a uniform and a command structure.

Shortly after this, Lieber received devastating news. His son, Oscar, who had been fighting for the Confederacy, had been killed in the Battle of Williamsburg. One of Lieber’s other sons, Hamilton, had been badly wounded earlier in the year. The conflict was consuming his family.

MALE SPEAKER: Behold in me the symbol of civil war.

ERIC MENNEL: And then in December, the Lincoln administration reached out again. They wanted Lieber to pull together a more comprehensive code of conduct, a law of war that would deal with all sorts of issues, a new framework for a new era of warfare. Lieber obliged.

Four months later, the Union Army issued general orders number 100– the code. It was Lieber’s magnum opus. It was groundbreaking. It covered topics ranging from torture to prisoners of war to the looting of cultural artifacts. It set the stage for the next century of humanitarian law.

We like to think that laws are decided by neutral parties, that the people who write the rules don’t have a horse in the race. But in war, it’s just the opposite. A father writing the rules for his sons seems the most logical, the most humane of authors. Lieber understood war could destroy.

In many ways, his code actually sanctions destruction. But he also understood that when it’s all over, we have to pick up the pieces. War Lieber thought, isn’t just about tearing things down. It’s about pulling them back together.

FEMALE SPEAKER: Article 16– military necessity does not admit of cruelty. That is, the infliction of suffering for the sake of suffering or for revenge nor of maiming or wounding, except in fight nor of torture to extort confessions. And in general, military necessity does not include any act of hostility which makes the return to peace unnecessarily difficult.

PETER: Eric Mennel is one of our producers.