Occupation

Volume 94 Number 885 Spring 2012The counter-argument is, of course, that military necessity is relevant onlyin the absence of specific prohibition. 123 This finds some support in the proviso inArticle 14: ‘Military necessity ...consists in the necessity of those measures whichare indispensable for securing the ends of the war, and which are lawful according tothe modern law and usages of war’. Yet the language, though apparently clear, doesnot really resolve the matter: are measures ‘which are indispensable for securing theends of the war’ required to be also ‘lawful according to the modern law and usagesof war’ or are they, ipso facto, ‘lawful, etc.’? 124 In fact, absolute prohibitions arescarce in the Code; even provisions whose text appears unqualified are subject toLieber’s circular hierarchy of values. 125 The counter-argument ignores the bases ofLieber’s military necessity, namely the various aspects of war’s instrumentality, andthe sources of restraint in the Code and in Lieber’s theory. Even if absoluteprohibitions can be identified in the Code, and if lawfulness is cumulative tonecessity, nothing in the Code suggests that this is grounded in humanity or humandignity in the sense used today.When it came to war, and to the law of war, Lieber’s sense of humanity wasflexible and relative to various facets of war’s instrumentality. It had no fixedboundaries and little autonomous meaning. It therefore had little existenceindependently of that which is necessary to the ends of war. Its content was notimmutable; Lieber’s sense of humanity in war was not a value opposed to militarynecessity, but rather a derivative of the belligerents’ war aims – and subordinate tothem. In that, Lieber’s ‘humanity’ is quite dissimilar to the contemporaryassociations of the term. In the Code, humanity in the sense of the ‘dignity andworth of the human person‘ 126 is neither a direct nor a significant source of restrainton the conduct of belligerents. Lieber’s sense of humanity was rational in method,not sentimental in proclivity. 127 Fundamentally, his sense of humanity in war wasinstrumental to humankind’s progressive vocation and the order – societal, national,and inter-national – necessary to attain it.From humanity as a commentary on attributes of human nature, Lieberconstructed a theory in which humanity was ultimately to serve as mankind’sprogressive, civilizational vocation. Though individuals stood at the foundation ofthis theoretical edifice, they also carried its full weight: Lieber’s humanity-asvocationleft little room for any variety, however rudimentary, of individualhumanity or entitlement under any doctrine of human dignity. 128 Lieberinstrumentalized and subordinated the individual to humanity’s vocation: order123 B. M. Carnahan, above note 120, p. 218.124 J. T. Johnson, above note 115, pp. 64–65. The February draft, above note 43, supports this.125 Lieber Code, Art. 5: ‘To save the country is paramount to all other considerations’.126 Universal Declaration of Human Rights, UN General Assembly Res. A/RES/217, 10 December 1948,preamble.127 J. C. Bluntschli, above note 7, pp. 12–13, lauded Lieber for remaining ‘fully aware’ that ‘to those engaged in[war], the harshest measures and most reckless exactions cannot be denied; and that tender-heartedsentimentality is here all the more out of place, because the greater the energy employed in carrying on thewar, the sooner will it be brought to an end, and the normal condition of peace restored’.128 See discussion on non-combatants, below.103