Occupation

Volume 94 Number 885 Spring 2012government: protecting and restraining nation-states, it was an empire overseeingtheir relations. 80 Rather than a product of sovereign states, law was the source oftheir sovereignty, their protection and restraints on their conduct. Rules of moderninter-national law, innate in human nature, drew directly from the fact of moderninter-national order and aimed at preserving it. 81 Expressing the condition ofhumanity, their role was to promote its vocation. 82This progressive ideology is explicit in the Code. Lieber’s humanity-asvocationrequired ‘the existence, at one and the same time, of many nations andgreat governments related to one another in close intercourse’ (Article 29). This wasa fundamental feature of a stable, regenerative order, which was necessary topreclude the emergence of short-lived hegemonies and total war. Such orderguaranteed a healthy, constant competition, catalyzing human progress to counterthe challenges of modern conditions. This ideology formed the basis for Lieber’sapproach to peace and war.War and peaceHumanity, as both an observed condition and a vocation, pervades Lieber’s theoryof war and the law that he devised to regulate it. Though he preferred peace to war,Lieber rejected pacifism and did not consider war as necessarily evil; he recognizedthe suffering that it brings, but often expressed admiration for war’s virtues. 83 In histheory, war was a force that could serve virtue. Though it caused suffering, warmight have a moralizing, civilizing effect on individuals and nations. 84 War couldbring nations ‘to their senses and makes them recover themselves’; if just, it oftenlaw of Good Neighborhood, and the comprehensive law of Nuisance, flowing from it, to vast nationalsocieties, wholly independent, sovereign, yet bound together by a thousand ties’).80 ‘[C]ivilized nations have come to constitute a community of nations, and are daily forming more andmore, a commonwealth of nations, under the restraint and protection of the law of nations, which rules,vigore divino. They draw the chariot of civilization abreast ...’: L. R. Harley, above note 51, p. 142; LieberCode, Art. 30; the notion of law as empire, entwining protection and restraint, appears in the Martensclause: Preamble, 1899 Hague Regulations.81 F. Lieber, above note 76, § 20 (‘the civilized nations of our race form a family of nations. If members of thisfamily go to war with one another, they do not thereby divest themselves of the membership – neithertoward the other members, nor wholly toward the enemy’); B. Röben, above note 33, pp. 246–247.82 Lieber to Sumner, 27 December 1861, in T. S. Perry, above note 43, p. 324 (‘International law is thegreatest blessing of modern civilization, and every settlement of a principle in the law of nations is adistinct, plain step in the progress of humanity’).83 He dismissed peace societies and their ‘principle of benevolence’ seeking ‘to prohibit all violent contest,even wars of defence and resistance, even ...to acquire liberty’: F. Lieber, ‘Law and usages of war’, abovenote 28, no. I; F. Lieber, above note 29, pp. 632–635. He admitted being ‘no vilifier of war under allcircumstances’: Lieber to Hillard, 18 April 1854, in T. S. Perry, above note 43, pp. 270–271; J. F. Childress,above note 27, p. 44; F. Freidel, above note 30, p. 223. His approach to war is manifest in his war advocacy:F. Friedel, above note 30, p. 319; Francis Lieber, ‘The disposal of prisoners’,inNew York Times, 19 August1861, p. 5.84 F. Lieber, above note 29, pp. 634 ff and 649 (wars historically disseminate civilization and cause ‘exchangeof thought and produce and enlargement of knowledge’); F. Lieber, above note 63, p. 26 (‘Blood has alwaysflowed before great ideas could settle into actual institutions, or before the yearnings of humanitycould become realities. Every marked struggle in the progress of civilization has its period ofconvulsion’). J. F. Childress, above note 27, pp. 43–44.95