In the American Scholar, David Bosco traces the roots of today’s Geneva Conventions to “Lieber’s Code” adopted by the US Army during the American Civil War from a paper on the treatment of insurgents and guerillas by Francis Leiber (1798-1872) a professor at Columbia University.
Unfortunately, the prospects for another â€œLieber momentâ€ appear slim. Many American leaders feel estranged from recent developments in international humanitarian and criminal law. The bewildering network of international conventions, courts, and commissions that is so inspiring to activists often appears menacing to those officials responsible for security policy. The ICCâ€™s birth, for example, occasioned far more handwringing than applause in the Pentagon and the State Department. The pride Lieber felt about being part of the international effort at codification has all but dissipated in government circles.
This change of tone and tactics has much to do with the geometry of power. Lieberâ€™s United States was weak, divided, and struggling to assure foreign observers that it could contribute to the civilizing goals of international law. Todayâ€™s United States has unparalleled power, and the international law that once signified membership in a rarefied club now threatens to hinder its freedom of action. Lieber also operated in a simpler legal age. His code, we should not forget, was a unilateral declaration; it was not negotiated with the Confederacy, let alone the rest of the world. The prospect today of amending the international rules governing warfare via negotiations with dozens of countriesâ€”some of them hostileâ€”is daunting.
Yet the unwillingness to take up the task has had painful consequences. As the United States conducts its global campaign against terrorism, the Bush administration has often preferred to operate in the murky spaces between vague provisions of existing law. Bush officials have sometimes grumbled about the inadequacy of the existing framework but have proffered little to take its place. The effect on American legitimacy and reputation has been grievous; many foreigners, including close allies, have concluded that the worldâ€™s superpower now operates outside the law.
Thanks to Karen Myers.