Looking for Law in a Period of War

Josh Carmel

As the first episode of PBS’ new series Mercy Street endeavors to show, the history of the Civil War is as much about individual men and women as it is the famous battles that we now remember. Nurses and doctors were forced to make tough decisions about who to treat, and how to treat them. Today these decisions are governed by a body of law called International Humanitarian Law (IHL), also known as the Law of Armed Conflict (LOAC) or the Law of War (LOW).

Henry Dunant

Much of IHL is derived from the Geneva Conventions, the first of which was signed in 1864, approximately two years after this week’s episode takes place. The driving force behind the First Convention was a man named Henry Dunant, whose experiences following the Battle of Solferino in 1859 persuaded him to form the International Committee of the Red Cross (ICRC). Even today, the ICRC remains the chief custodian of the Geneva Conventions and continues to record customary international law as it is created. But this begs the question: If the First Geneva Convention was not signed until 1864, what did we do in 1862 when the episode takes place?

Henry Dunant

IHL revolves around four fundamental principles: military necessity, humanity, distinction, and proportionality. The first active attempt to codify these in the United States occurred in 1863, when President Lincoln signed General Order No. 100. This order, known as the Instructions for the Government of Armies of the United States in the Field or the Lieber Code, was named after its drafter, eminent political philosopher and Columbia University professor Francis Lieber. One of the most important provisions of the Code was Article 16, which stated that “military necessity does not admit of cruelty – that is, the infliction of suffering for the sake of suffering or for revenge, nor maiming or wounding except in fight, nor of torture to extort confessions.” Additionally, Article 79  of the Lieber Code states that “[e]very captured wounded enemy shall be medically treated, according to the ability of the medical staff.” This last provision is of particular significance to Mercy Street, where it requires medical personnel to treat the wounded with human decency and respect.

Even before the Lieber Code took effect, significant principles for the treatment of the wounded and the conduct of a “just war” were formulated by great thinkers like Augustine, Thomas Aquinas, and Hugo Grotius. In the absence of a well-defined code, and especially in the period between 1862 and the adoption of the Lieber Code in 1863, Civil War doctors had the customs of ancient philosophers and Enlightenment humanists to guide their way.

Grotius

Take Grotius, for example. His 1625 work De jure belli ac pacis, “On the Law of War and Peace,” was of seminal importance to IHL. Grotius advocated for the advancement of what he recognized as “common law among nations, which is valid alike for war and in war.” This “common law” of which he spoke became the basis not just of customary international law, which requires consent and ratification of states, but also the subsequent adoption of jus cogens, or peremptory norms. These norms are binding upon all states, and could not and cannot now be violated through special customs, treaties, or general rules. The both the work of philosophers like Grotius and the role of custom continue to inform IHL today.

We see one of these customary rules, the rule of distinction, well-represented in this week’s episode of Mercy Street. Soldiers are required to distinguish between those who are actively involved in fighting and those who are not. While civilians are the most obvious group excluded from military targeting, the wounded are also traditionally exempted as hors de combat, or those who are “outside the fight.”  In Sunday’s episode, Emma Green unwittingly touches upon hors de combat when she chastises our protagonist, Mary Phinney, for declining to assist a wounded Confederate soldier. Emma states that “whatever he was out there, in here he was merely thirsty.” Dr. Jedidiah Foster, played by Josh Radnor, appears to be the only doctor truly concerned with the rule of distinction at this point in the series.

As Mercy Street continues, I have no doubt that we will see the introduction of other principles which reflect the modern body of IHL. As the Civil War grew more complicated and vicious, the rules governing its conduct became more intricate and advanced. However, in 1862 when the first episode took place, IHL inhabited an uncomfortable grey area. The frustrations of the medical personnel about distinguishing between right and wrong were not only palpable but were all too commonplace.

About the Author

Josh Carmel is a third-year law student at Emory University in Atlanta, GA. Although his focus is primarily in domestic criminal law, he has taken modules both in the Law of International Organizations and International Criminal Law. In addition to his coursework, Josh is also a member of Emory’s International Humanitarian Law Clinic and its Volunteer Clinic for Veterans.