David Armitage is the Lloyd C. Blankfein Professor of History and chair of the Department of History at Harvard University, where he teaches intellectual history and international history. His latest book, Civil War: A History in Ideas, will appear in 2016 from Alfred A. Knopf in the US and Penguin Random House in Canada.
By Peter Boisseau
As the world struggles with the intractable nature of civil war, it keeps falling victim to an intellectual history echoing from ancient Rome through mid-19th century America to modern day Syria, said Harvard University history professor David Armitage as he delivered the 2015 Katherine M. Baker Memorial Lecture.
The laws of war become murky at best when entangled with politics, and even more so when dealing with the contentious definition of civil war, Armitage told the University of Toronto Faculty of Law audience.
“My answer to the question about why we are so perplexed about ideas of civil war and what conflicts qualify as civil wars is, in short, ‘History.’”
In a day and age when most wars are some form of civil war, the urgency to define and draw legal boundaries around the issue is more pressing than ever, said Armitage. He noted that it took the International Committee of the Red Cross almost a year to declare the Syrian conflict a civil war. In that time, an estimated 17,000 people died.
“The political pressure has become very acute and it’s not going away,” said Armitage.
“Calling a conflict a ‘civil war’ dignifies the combatants, gives them legitimacy, and brings some of the determinations of international humanitarian law to bear upon these matters.”
Prof. Armitage said the first attempt to create legal definitions of civil war occurred during the 1860s in the U.S. during the conflict between Northern and Southern states.
There’s little wonder consensus usually eludes even modern scholars. Defining civil war and its boundaries is a question that has preoccupied the great minds of their day, from poets and social scientists to historians and lawyers, Armitage pointed out.
Victor Hugo ruminated about the nature of civil war in Les Misérables. Moby Dick author Herman Melville wrote a poem alluding to its ancient legacy at the end the U.S. Civil War, and British philosopher John Stuart Mill weighed into the debate as well.
The “sedimentation” of these contentious debates into present day conflicts in places such as Iraq and Syria started with a Roman invention, bellum civile, or “a war against fellow citizens.” The term was inherently contradictory from the beginning, Armitage said, because wars had until then been defined in terms of conflicts with foreigners.
Law professor Anna Su introduced Armitage as “one of the world’s leading scholars working at the intersection of intellectual and international history,” and the lecture drew on his forthcoming book, Civil War: A History in Ideas.
Armitage said the first attempt to create legal definitions of civil war occurred during the 1860s in the U.S. during the conflict between Northern and Southern states.
The task fell to Prussian-born lawyer Francis Lieber, who was enlisted to codify the definitions and laws that would distinguish civil war from related concepts like rebellion and insurrection.
In the background were the problematic Roman concepts and the writings of scholars such as Swiss jurist Emer de Vattel, who argued in his influential 1758 work, Le Droit des gens, that international intervention into a divided society was sometimes justified.
International meddling in the U.S. Civil War was something the South wanted but U.S. President Abraham Lincoln was determined to discourage. He was backed by the likes of Mill, who argued the ongoing war was really a crusade for four million enslaved people who had not consented to Southern secession.
The Lieber Code of April 24, 1863, was issued by Lincoln as instructions to the Union army concerning the use of martial law, military jurisdiction, and the treatment of spies, deserters and prisoners of war.
By Lieber’s reckoning, the U.S. Civil War was in fact a rebellion, said Armitage.
“It was a war of international public opinion, if anything else,” he said in response to a question from law professor Mohammad Fadel about why the South preferred the conflict be seen as an international war.
On the other hand, the Union sought to use the Lieber Code to combat the idea it was an international war, and argue that it was instead an illegitimate form of warfare, said Armitage.
The Lieber Code was used selectively, however. Violence continued in the South for decades after war “as if this attempt at codification never took place,” he said when asked by law professor Larissa Katz if the code had created a viable exit strategy.
Indeed, both Lieber and Lincoln referred to the conflict interchangeably as both a “rebellion” and “civil war” in public and in private, “making a mockery of the lawyer’s anxious efforts at precision” in drafting the code.
“No question, it was a matter of expediency,” said Armitage, responding to questions from law professor David Dyzenhaus and the dean, Edward Iacobucciabout the pros and cons for the combatants of legally defining the U.S. Civil War.
But the Lieber Code also set the foundation for both The Hague Conventions and Geneva Protocol, international treaties in the late 19th and early 20th century outlining the rules of war.
It also continued to be referenced by the U.S. Army’s law of war manual well into the 20th century.
“So whatever its contested origins and whatever the larger debate around it,” said Armitage, “the Lieber Code remained tremendously influential in setting the boundaries of later discussions, and some of the very foundations on which that discussion continues.”
Law student Misha Boutilier asked Armitage about Syrian President Bashar al-Assad’s attempt to label his country’s conflict as a counter-terrorism operation instead of a civil war, with the idea this would not only prohibit foreign states from intervening but imply they had a duty to assist the government.
“It’s a good example of how new conceptions get layered into these contentious arguments after 9/11, which creates the idea of a global civil war on terror for the last decade or so, but which has antecedents going back to the First World War,” Armitage responded.
And while it may never be possible to define civil war, because it is politically contentious and heavily freighted with history, “at least being aware of where it comes from, what its consequences are and how these different concepts articulate with each other, is one way of pushing the issue forward.”
