Georgia Law alumna Chanel Chauvet publishes at Opinio Juris on POW remittances, in blog symposium on 2020 GCIII Commentary directed by alumnus Jean-Marie Henckaerts

Pleased to note the publication last Thursday by a recent graduate of the University of Georgia School of Law, as part of an ongoing joint symposium sponsored by Opinio Juris and by the Humanitarian Law & Policy Blog of the International Committee of the Red Cross.

Author of the contribution entitled “Prisoners of War Remittances – Financial Challenges of Sanctions and Conversion Rates” is Chanel Chauvet, who earned her J.D. degree from Georgia Law in 2018, and also, just last year, her LL.M. degree cum laude in International Humanitarian Law and Human Rights from the Geneva Academy of International Humanitarian Law and Human Rights in Switzerland.

Applying a case study of relations between Iran and the United States, Chauvet’s post details the obstacles faced by a prisoner of war, or POW, in securing remittances – funds that family members send “in an effort to contribute to the POW’s financial welfare” – on account of financial sanctions regimes and currency conversion rates. She concludes with recommendations that would remove remittances from the effects of these regimes, writing:

“The legal landscape governing POW remittances is insufficient, and as such, states should collectively address the obstacles that damage the financial health of POWs by incorporating specific protections for POWs (e.g., a legal exclusion for POW payments and remittances) from the effects of the banking sanctions that are in place in their Power of Origin.”

While a J.D. student, Chauvet served as a Dean Rusk International Law Center Student Ambassador and a research assistant to the Center’s Faculty Co-Directors, Professors Harlan Cohen and Diane Marie Amann. She completed the Grotius Centre Summer School on Humanitarian Law at Leiden Law School in the Netherlands, competed on a winning Model African Union team, served as worldwide student president of the International Law Students Association, and was the recipient of the Blacks of the American Society of International Law Annual Meeting Scholarship.

Chauvet is a member of the Bars of the State of Georgia and of the District of Columbia.

At the Geneva Academy, she was elected the Student Council LL.M. Representative and was the student commencement speaker. She served as a Legal Intern in the International Law & Policy Department at the ICRC, and also made presentations at meetings of the UN Human Rights Council in her capacity as the Permanent Representative in Geneva for the International Association of Jewish Lawyers and Jurists.

Chauvet’s LL.M. thesis, from which the Opinio Juris post draws, was supervised by a Geneva Academy professor who is himself earned his LL.M. at Georgia Law in 1990: Dr. Jean-Marie Henckaerts, Legal Adviser in the ICRC’s Legal Division and a member of our Dean Rusk International Law Center Council.

Chauvet’s post forms part of a symposium of articles analyzing aspects of Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949. Commentary of 2020. Known colloquially as GCIII, that commentary is the third published under Dr. Henckaerts’ directorship. Indeed, we at the Center were honored to host a daylong conference marking the issuance of the initial volume, the Commentary on First Geneva Convention, with papers published in the Georgia Journal of International & Comparative Law.

“Future of Global Health Governance” topic of Monday’s Georgia Law international journal conference

Global Healthcare Governance Conference Header

“The Future of Global Healthcare Governance” is the topic of the annual Georgia Journal of International & Comparative Law daylong symposium, to be held this Monday, January 25.

We at the Dean Rusk International Law Center of the University of Georgia School of Law are cosponsoring this online conference along with GJICL and the law school’s Health Law Society and International Law Society, as well as the university’s College of Veterinary Medicine, School of Public & International Affairs, and School of Social Work.

Taking into account the effects of globalization and climate change on the spread of historically localized pathogens — among them, H1N1, Zika, Ebola, and COVID-19 — the conference will re-examine legal and other frameworks designed to respond to global pandemics. The roles to be played by stated and by international entities like the World Health Organization will be explored. To quote the concept note:

“This conference will address three crucial questions of global health governance. It will consider, first, whether and how the ailing global public health infrastructure might be reinvigorated; second, how the pandemic has threatened and exposed limitations of the social safety net in the United States and other economies around the world; and, finally, the phenomenon of vaccine refusal and what national and international legal institutions might do to curb it.”

Delivering opening remarks will be Georgia Law Dean Peter B. “Bo” Rutledge and Elizabeth Weeks, the University of Georgia Associate Provost for Faculty Affairs and Charles H. Kirbo Chair in Law. A keynote address, panel presentations, and breakout sessions will follow. These include (all times Eastern):

10:30-11:30 a.m. The Role of International Organizations in Global Health Governance, moderated by Georgia Law Professor Fazal Khan. Speakers: Thomas J. Bollyky, Council on Foreign Relations; Benjamin Mason Meier, University of North Carolina-Chapel Hill; Alexandra Phelan, Georgetown University Center for Global Health Science & Security; Pedro Villarreal, Max Planck Institute for Comparative Public Law & International Law; and Alicia Yamin, Harvard Law.

12:45-1:45 p.m. The Role of Federal Governments in Pandemics, moderated by Elizabeth Weeks, the University of Georgia Associate Provost for Faculty Affairs and Charles H. Kirbo Chair in Law. Speakers: Christina S. Ho, Rutgers Law; Renée M. Landers, Suffolk Law; Gwendolyn Roberts Majette, Cleveland-Marshall Law; and Wendy Parmet, Northeastern Law.

2-3 p.m. The Global Campaign for the Collective Good, moderated by Hillel Y. Levin, Alex W. Smith Professor of Law at Georgia Law and Director of UGA Law in Atlanta. Speakers: Shawn Harmon, Dalhousie University; Glen Nowak, University of Georgia; Saad Omer, Yale School of Medicine; and Dorit Reiss, California-Hastings Law.

3:30-4 p.m. Keynote Address by Marice Ashe, ChangeLab Solutions, and Elsie E. Hayford, Lamèsè.

Papers will be published in a forthcoming GJICL issue. The full program, with registration information, is available here.

Georgia Law Appellate Litigation Clinic students win victory for client in 9th Circuit immigration case invoking Convention Against Torture

A woman seeking withholding of removal from the United States has won her challenge to an adverse ruling by the Board of Immigration Appeals – a challenge briefed and argued by students in the Appellate Litigation Clinic here at the University of Georgia School of Law.

By a 2-1 decision issued Tuesday in Case No. 19-72750, Arellano Herrera v. Barr a panel of the U.S. Court of Appeals for the Ninth Circuit reversed and remanded to the BIA.

The panel majority in Case No. 19-72750, Arellano Herrera v. Barr, comprised Ninth Circuit Judge Margaret M. McKeown and U.S. District Judge Virginia Mary Kendall, sitting by designation. Its opinion effectively reinstated the first decision in the case, in which an Immigration Judge had ruled for the Clinic’s client, Graciela Arellano Herrera, whose parents brought her to the United States three days after her birth.

In oral arguments conducted online this past September (prior post), Georgia Law 3L Jason N. Sigalos argued that if Arellano Herrera were sent back to her native Mexico it was more likely than not that member of a drug cartel would torture her, with the acquiescence of one or more public officials. To permit such a risk, the Clinic team contended, would violate non-refoulement (non-return) obligations that the United States took on when it ratified the 1984 Convention Against Torture. The panel majority agreed.

The panel’s third member, Ninth Circuit Judge Lawrence James Christopher VanDyke, agreed that the BIA had erred on one challenged ground, but in his view the BIA was correct in finding that Arellano Herrera could safely relocate in Mexico. He thus dissented, reasoning that the latter finding alone supported affirmation of the BIA ruling.

The Clinic team included Sigalos and his classmates, 3L Mollie M. Fiero and John Lex Kenerly IV, who earned his J.D. earlier this year. They worked under the supervision of Thomas V. Burch, the Clinic’s Director, and Anna White Howard, the Clinic’s Counselor in Residence. (prior posts)

Georgia Law clinics join to assist in litigation by immigrant women alleging abuse, retaliation while in ICE detention

Two clinics here at the University of Georgia School of Law have joined forces on behalf of women who allege they endured abusive gynecological and other medical treatments, as well as inhumane conditions and retaliation, while in the custody of U.S. Immigration and Customs Enforcement (ICE), at a privately run facility in south Georgia.

Allegations became public with a September report by an independent team of experts who reviewed complaints by detainee-whistleblowers at the Irwin County Detention Center in Ocilla, located 187 miles south of Atlanta and 55 miles north of Valdosta.

Investigations, congressional inquiries, and litigation ensued – including a habeas corpus petition that one detainee, Yanira Yesenia Oldaker, filed November 9 in the U.S. District Court for the Middle District of Georgia. The Immigrants’ Rights Clinic at Columbia Law School in New York represents Oldaker.

A mid-November phone call led to the representation by Georgia Law’s Community HeLP and First Amendment Law Clinics of another Irwin detainee-whistleblower. Because ICE has sought – at times successfully – to deport detainees who assist in exposing conditions, the case implicates both immigration statutes and the Constitution’s free speech guarantees.

The Georgia Law clinics prepared a motion on behalf of their client and 21 other detainees, women who migrated to the United States from at least 4 continents. Filed last Thursday, the motion and memorandum of law (available here) seek to add these women’s declarations in support of the Oldaker petition; additionally, to permit 19 of the women, who fear retaliation if identified, to proceed using “Jane Doe” pseudonyms and to file under seal their declarations, which contain allegations of abuse.

Clare R. Norins, Assistant Clinical Professor and a clinic director, explained:

While normally the First Amendment Clinic stands on the side of transparency in the courts, this time we are arguing for less public access in order to protect our client and the other 21 women from suffering retribution for exercising their free-speech right to describe their inhumane treatment to the court, and in so doing, petition to government for grievances.

The motion is pending before U.S. District Judge W. Louis Sands in Valdosta.

Taking part in this team effort were faculty, staff, and students: for the First Amendment Clinic along with Professor Norins were 3L Anish Patel and Legal Fellow Samantha Hamilton; and for the Community HeLP Clinic, the director, Associate Dean  Jason A. Cade, and Staff Attorney Kristen Shepherd. Providing further assistance, including translation from English to Spanish, was administrative associate Sarah Ehlers.

Georgia Law alumna Lauren Brown publishes on “Legal Answer to the China Question” in NATO Legal Gazette

“Partnership, Not Pivot: NATO’s Legal Answer to the China Question” is the title of an article by Georgia Law alumna Lauren Brown, just published at 41 NATO Legal Gazette 27-45 (2020). The essay appears in an issue devoted to the subject of “Legal Aspects of Innovation.”

Brown wrote the article while serving in Spring 2019 as a full-semester NATO Legal Extern in Mons, Belgium, an experience she described in a prior post.

With reference to NATO, the North Atlantic Treaty Organization (NATO), Brown’s Legal Gazette essay asserts:

“[T]he Organization is falling behind in addressing the multipolar reality that has defined the geopolitical landscape since the early twenty-first century. This multipolar world features as primary influencers the United States, the Russian Federation, and the People’s Republic of China. And it requires NATO to undertake innovation in its strategy; in particular, to broaden its partnership initiatives formally to include China.”

The essay proceeds to outline multiple ways by which such a partnership might be forged, and concludes that “NATO’s future relevance is contingent upon its ability to directly and formally engage China in a meaningful cooperative partnership.”

Brown earned her Georgia Law J.D. degree magna cum laude in 2019. Since then, she has practiced as an Associate in the International Trade Practice at the Washington, D.C., office of the global law firm Squire Patton Boggs.

She also holds a master’s degree in International Relations from the University of Edinburgh in Scotland and B.A. in International Studies, with highest distinction, from the University of North Carolina-Chapel Hill. Before beginning her legal studies, she had worked as a news analyst in the Washington area. Her activities at law school included: Articles Editor of the Georgia Journal of International and Comparative Law; Research Assistant to Professor Harlan G. Cohen, our Center’s Faculty Co-Director; and Summer 2017 Global Extern at War Child Holland in Amsterdam.

Brown was Georgia Law’s inaugural NATO Legal Extern, thanks to a partnership between our Center and NATO Allied Command Transformation. That initiative is ongoing, as indicated by 3L Miles Porter’s recent post on his experience at NATO HQ SACT in Norfolk, Virginia.

Georgia Law Appellate Litigation Clinic students invoke Convention Against Torture in 9th Circuit oral argument

The U.S. Court of Appeals for the Ninth Circuit heard arguments last week in an immigration case involving the Convention against Torture – a case prepared by a team of students in the Appellate Litigation Clinic here at the University of Georgia School of Law.

Georgia Law 3L Jason N. Sigalos argued on behalf of client Graciela Arellano Herrera in Case No. 19-72750, Arellano Herrera v. Barr. On account of the covid-19 pandemic, Sigalos’ argument was delivered virtually (video here), to a panel composed of Ninth Circuit Judges Margaret M. McKeown and Lawrence James Christopher VanDyke, along with U.S. District Judge Virginia Mary Kendall, sitting by designation. (Sigalos, who spoke from Georgia Law’s Hatton Lovejoy Courtroom, is pictured above at bottom right.)

Joining Sigalos on the briefs were his classmates in the Appellate Litigation Clinic (prior posts), 3L Mollie M. Fiero and John Lex Kenerly IV, who earned his J.D. earlier this year.

Together they represent appellant Arellano Herrera, the mother of seven children and grandmother of another seven, all U.S.-born citizens. The client herself has lived in this country since her parents brought her to the United States three days after her birth in Mexico.

Her appeal seeks reversal of a Board of Immigration Appeals order that she be removed from the United States. Relying on non-refoulement (non-return) obligations the United States took on when it ratified the 1984 Convention Against Torture, she argues that prior forced involvement with a drug cartel makes it unsafe for her to relocate anywhere in Mexico. She contends that if she were she to be sent back, it is more likely than not that cartel members would torture her, with the acquiescence of one or more public officials.

The Ninth Circuit panel is now deliberating.

Georgia Law Dean Bo Rutledge, 2L student Emina Sadic Herzberger publish on circuit split regarding discovery before arbitral tribunals

A federal judicial disagreement on the extent to which a discovery statute applies to private arbitration is the subject of a new commentary by the dean and a student researcher here at the University of Georgia School of Law.

Coauthoring the Daily Report article, entitled “Circuit Split Deepened by Second Circuit’s ‘Functional’ Test Application in Recent Section 1782 Ruling,” were international business law expert Peter B. “Bo” Rutledge, Dean and Herman E. Talmadge Chair of Law at Georgia  Law, along with 2L Emina Sadic Herzberger.

The article concerns whether 28 U.S.C. § 1782 – which authorizes discovery for use in proceedings before a “foreign or international tribunal” – extends to proceedings before private arbitral tribunals. The U.S. Courts of Appeals for the 4th and 6th Circuits generally say yes; for the 2d and 5th Circuits, no. The doctrine is uncertain, the authors point out, in the Atlanta-based 11th Circuit.

Their full commentary is here.

Georgia Law 3L Devon Pawloski reflects on significance of her Global Externship at DC-Cam in Phnom Penh


Today we welcome a guest post by Devon E. Pawloski, a member of the University of Georgia School of Law Class of 2021 who is enrolled in the JD/MHP, or Juris Doctor and Master of Historic Preservation dual degree curriculum. The summer after her first year of law school, Devon benefited from a GEO – a Global Externship Overseas, administered by Georgia Law’s Dean Rusk International Law Center. Her post describes that experience and then reflects on how it helped guide her career preparation.

I spent my 1L summer working at the Documentation Center of Cambodia, or DC-Cam, in Phnom Penh as a Georgia Law Global Extern Overseas. DC-Cam is a nongovernmental organization that archives documents and objections for the Khmer Rouge Tribunal, and also creates educational materials, curates historic exhibits, and builds programming to promote reconciliation regarding the Khmer Rouge genocide.

My main project connected Cambodia’s rich cultural heritage to DC-Cam’s education and reconciliation goals. Destruction of cultural heritage is often not acknowledged as a significant part of war and genocide. But throughout its history Cambodia’s heritage has been plundered, under French colonization, the Lon Nol civil war, the Khmer Rouge genocide, Vietnamese occupation, and even today. My research focused on the prevention of looting and the incorporation of cultural heritage education in schools, with the ultimate goal of helping Cambodia to heal from the Khmer Rouge atrocities by rallying around Cambodia’s heritage.

Under the guidance of American attorney-advisors, I worked with the DC-Cam staff and a Tulane Law student, Ben Evans, to document the state of cultural heritage looting in Cambodia. Ben and I first researched international heritage conventions and Cambodia’s cultural heritage laws from the French colonial period (1863 to 1953) to the present. We then selected two sites to use as case studies, in which we interviewed government officials, police officers, soldiers, museum curators, teachers, students, and other locals about their personal experiences with looting and their knowledge of cultural heritage laws. The sites were:

  • Angkor Borei, the location of the ancient Funan Empire capital. Looting of Angkor Borei dates to the French colonial period, when French scholars and others took decorative elements and statuary from Phnom Da, a nearby temple that, along with Angkor Borei, has been tentatively nominated to the UNESCO World Heritage list. The French made meaningful attempts to restore portions of the temple, but the damage was done. The temple’s remaining statuary was removed for safekeeping in the 1990s. However, villagers still find remnants of the ancient kingdom in their backyards. Until recently, it was common for villagers to dig for beads, pots, statues, and other small items to sell for food and clothing. Local middlemen approached the villagers to request items, which were then smuggled across the border. In 2011, looting slowed down after an information campaign about cultural heritage laws. (pictured at top left, Devon, as part of her field research, interviews a nun in Wat Kamnou, Angkor Borei) 
  • Ta Moan, an 11th century temple which sits on the contested border between Cambodia and Thailand. Smugglers toted off almost all of Ta Moan’s statuary to Thailand during the Vietnamese occupation of Cambodia in the 1980s and 1990s. Between 2009 and 2011, fighting broke out between Cambodia and Thailand along the border, including within the temple complex itself. In 2011, the countries reached a ceasefire, but armed Khmer and Thai soldiers still occupy the site. (pictured at top right, part of Ta Moan)

This field research led to a paper, “Protecting Cambodia’s Heritage: An Exploration of International and Domestic Law,” which described the current legal historic preservation framework in Cambodia and the lack of enforcement of these laws, then suggested mechanisms for looting prevention. Suggestions includes local cultural heritage education in secondary schools and  heritage protection education for soldiers, by means of DC-Cam’s genocide education program. To help DC-Cam implement this, I drafted a cultural heritage education syllabus with reading materials and activity suggestions that can be added as a final chapter to future editions of DC-Cam’s genocide education textbook.

In addition to this work, I was able to explore many beautiful places throughout Cambodia, including Siem Reap, famous for its Angkor Wat temple complex, and Kep, a beach town with French colonial architecture. When I finished my GEO, I traveled to Ho Chi Minh City, Vietnam. I even gained a few new skills in Khmer and Vietnamese cooking classes, which have been fun to brush up in these recent months of quarantine.

* * * *

The highlight of my law school experience, my Summer 2018 GEO in Cambodia has since influenced my educational and professional path. When I returned from Cambodia, I dove into international law to contextualize my summer experience. I took courses in international law, including International Human Rights with Professor Diane Marie Amann and International Legal Research with Professor Anne Burnett, and I worked with Professor Kate Doty on the Georgia Journal of International & Comparative Law.

When I applied for the University of Georgia Master of Historic Preservation degree program later that year, I wrote about my international heritage law research in Cambodia. Once I was admitted to the program, I wrote about international heritage law and repatriation of Native American artifacts. Although a master’s thesis about international heritage law is not feasible during this pandemic, the skills that I gained during my GEO, including research and communication across cultural boundaries, will be fundamental to my research.

My GEO is also provided an excellent foundation for the beginning of my legal career. I have been asked about my GEO in every job interview I have had since my 1L summer. Interviewers can easily understand my passion for cultural heritage, international law, and even environmental law when I am asked about my incredible experience in Cambodia. I am not sure where my post-law school career will take me, but I know that I will continue to volunteer with my friends and colleagues at the Documentation Center of Cambodia.

Georgia Law Appellate Clinic secures at-risk client’s release from immigration detention center

The Appellate Litigation Clinic here at the University of Georgia School of Law has secured the release from immigration detention of a Cuban client who suffers from asthma and a history of cancer.

The 26 year old client, who has no criminal history, had come to the United States to avoid repeated police beatings for his protests against the government in Cuba. He had been held for nineteen months without a bond hearing at the Stewart Detention Center in Lumpkin, Georgia, where as of mid-August 2 inmates had died from COVID-19 and more than 150 had been infected.

Students working through the clinic contended that their client’s medical condition increased the risk that while in detention during the present pandemic, he too would contract the novel coronavirus disease. They litigated his case in many administrative and judicial forums: a hearing on a motion for bond in Stewart Immigration Court; multiple parole requests to ICE, the United States Immigration and Customs Enforcement agency; a habeas petition before the U.S. District Court for the Middle District of Georgia; and an opening brief and motion to expedite before the U.S. Court of Appeals for the Eleventh Circuit.

Working on the case were Addison Smith and Spencer D. Woody, both of whom earned their Juris Doctor degrees this past spring, along with 3L Steven L. Miller and 2Ls Christopher O. Brock, Destiny J. Burch and Maria C. “Mia” Hughes.

The merits appeal and detention appeal both continue even though the client has been released from ICE custody. Under the supervision of Thomas V. Burch and Anna White Howard, who direct Georgia Law’s Appellate Litigation Clinic, students will continue to pursue an Eleventh Circuit judgment in their client’s favor.

(Credit for photo of the Elbert P. Tuttle Courthouse in Atlanta, home to the U.S. Court of Appeals for the Eleventh Circuit)

Brutal Peace: Lieber Code, NATO mission, and personal journey, by Georgia Law 3L Miles S. Porter


In this item, Miles S. Porter, a J.D. candidate in the University of Georgia School of Law Class of 2021, reflects on his Spring 2020 full-semester externship at NATO HQ SACT in Norfolk, Virginia. Miles’ background includes: B.A. degree in international relations and German, University of South Carolina 2011; U.S. Army active duty 2013-2018, including tour in Afghanistan; and U.S. Army reservist since 2018.

Peace can be brutal. I am reminded of this axiom as an unwelcome silence invades my office space from the street below. The COVID-19 pandemic has brought life to what some have called a “peaceful” and “virtual” standstill. But with an unprecedented 30-plus million Americans claiming unemployment in the last month, “brutal” seems a more appropriate descriptor.

Like many of my peers, I finished my spring semester externship from home, a mere 800 socially distanced miles from my worksite, the NATO headquarters in Norfolk. Early on, I had looked forward to watching the 30th flag raised at Norfolk in honor of North Macedonia’s recent membership, to enjoying the parade of nations at the NATO Festival, and to hearing former NATO Supreme Allied Commander Transformation General James Mattis speak at the Norfolk Forum. Instead I am at home, reflecting.

While America finds itself embroiled in yet another metaphorical war, against COVID,  perhaps it is appropriate then that my thoughts have ultimately turned to war itself. Specifically, they have turned to a theory of war that decries the paradox of a “humane war.” This paradox is explored in the 2012 book I read as part of my externship tutorial: Lincoln’s Code: The Laws of War in American History, by Yale Law Professor John Fabian Witt. A compelling narrative about one of the first codifications of the laws of war and perhaps one of the earliest uses of lawfare, Lincoln’s Code is more page-turning adventure story than legal treatise.

The book’s conclusions, far from uncontroversial, initially resonated with me. But they also raised important questions about the role of NATO, the rule of law, and the future of warfare. This post will examine those questions, then end with some thoughts on my NATO experience.

Now to “Old Hundred.”

“Old Hundred”

The U.S. War Department issued General Order No. 100, also known as the Lieber Code, in May 1863, at the height of America’s bloodiest war. Commissioned by President Abraham Lincoln’s Secretary of War, Edwin Stanton, and endorsed by the General-in-Chief of all Union Armies, Henry Halleck—an attorney himself—the “Old Hundred” was a necessary contribution to the Union’s war efforts. First, it helped frame the conflict in legal terms, extending law of war protections to prisoners and proving to foreign states that the Union’s actions were in fact legitimate. Second, it enabled Lincoln to achieve his goal of emancipation.

Lincoln had won the 1860 election on a platform that denounced the expansion of slavery into new states. This precipitated the secession of South Carolina even while James Buchanan was still President, and set the nation on the path to civil war.

The story of The Code is told in tandem with the story of its author, and the maxims within are better read as a story of lessons learned. While Francis Lieber was an academic, a professor first at the University of South Carolina and later at what is now Columbia University, he was also a soldier. He was someone who had his family and his life torn apart by war. His sons fought on opposite sides during the conflict he helped to end. Rather than devote himself to pacifism, however, Lieber thought the call to arms was “the most honorable calling of mankind” and that “when carried on by civilized peoples, just wars were the way civilization spread. … Justice, not peace, [was] the highest ideal.”  (Witt 178). Not only did he believe in the importance of just wars, Lieber had kept slaves himself for a time and had seen firsthand the effects of slavery while living in South Carolina. It is in this context that “Old Hundred” should be read.

A notable characteristic of Lieber’s work was that it ran counter to then-conventional doctrine on the laws of war. Lieber openly spoke out against the end of war advocated by the leading contemporary European thinkers (182), preferring the writings of older theorists like Clausewitz. Humanizing wars, in Lieber’s opinion, had the paradoxical effect of prolonging human suffering.  He urged short and sharp wars because “the more earnestly and keenly wars are carried on, the better for humanity, for peace and civilization.” (184) This became the basis for the last sentence in Article 29 of his Code:

“Sharp wars are brief.”

The principle at the essence of the Code is military necessity. As Witt shows, military necessity became an almost absolute power, remarkable for what it forbade and more remarkable for what it allowed. Torture was expressly forbidden but the starvation of villages, emancipation of slaves as enemy property, and martial law were permitted, even expected. And yet the principle persisted, so that in the present day military necessity is one of the five accepted principles of the laws of armed conflict, or LOAC.

“Old Hundred” quickly gained traction abroad. European lawyers and politicians had been searching to codify their own “enlightened” laws of war after over a century of bloody conflicts. To this end, they concluded the very first Geneva Convention in 1864. Yet delegates at that Geneva Conference, influenced by some of the more pacifistic thinkers of the day, had gone in a somewhat different direction than Lieber. Their Convention outlawed some of the barbarities of war, reforming war in the hopes of one day ending it altogether. This approach foretold advancements in the laws of war that would occur in the wake of the World Wars of the 20th century.

Choosing an Approach

The Charter of the United Nations was signed and entered into force in 1945.  A short five years later, the North Atlantic Treaty, NATO’s founding document, likewise was signed and entered into force. Today, in 2020, Kabul, Afghanistan, has been the site of armed conflict and a nearly two-decades-long military presence by America and its NATO allies. The fact provokes questions:

  • Is the “forever war” a byproduct of the humanization of warfare?
  • Is that result what Francis Lieber had fought so vehemently against? Or is it merely indicative of the progress made towards the abolishment of warfare as an institution, which the United Nations and its progeny were designed to facilitate?
  • By sheathing the short war, have we lost a valuable weapon in our proverbial arsenal, holding ourselves to morals that our less scrupulous foes may not?

These were the questions that I faced after reading Lincoln’s Code.

Initially, I embraced the short, sharp wars advocated by Lieber, Tolstoy, and Clausewitz. Frustrated by a perceived lack of progress in recent war efforts and the absence of defining victories (ignoring a certain shipboard declaration of victory), my inclination was towards a strategy of power, shock, and awe. I thought that .

After further consideration, I think maybe this initial reaction was a bit rash: While I agree with many of the principles and ideals set forth by Lieber and his short-war sympathizers, I believe that he made some key mistakes. Like many who romanticize, he failed to account for the realities of the world.

If we do the same, we do so at our own peril.

Short wars reached their pinnacle with the Cold War. That is ironic since the Cold War was long – nearly a half-century prompted by the threat of the ultimate short war, nuclear war.  The international community has since demonstrated a strong aversion to this inhumane form of short war, to the point that in a near-peer conflict it may be more than ill-advised, it may be a nearly impossible strategy to pursue.  The changing instrumentalities of war, towards weapons of mass destruction, have altered the calculus of war.  As America’s near-peer adversaries retain an interest in a balanced geo-political environment, even short wars with non-nuclear equipped opponents seems unlikely.  The new realities of warfare include nuclear weapons, and as long as this remains true, the possibility of short wars will remain distant.

Post-Cold War NATO, or NATO 2.0, represents the other side of this equation. The military alliance, initially established as a After the USSR fell, NATO endured. It participated in some of the largest humanitarian efforts of the 20th and 21st centuries, in places like Kosovo, Haiti, and Afghanistan.

In truth, globalization, the threat of nuclear warfare, and a determined international effort to outlaw war have changed the face of warfare completely. Warfare today is about competition, about living in the gray areas of the law. It resembles humanitarian aid more than it does Gettysburg or Antietam.

Democracy, liberty, and the rule of law are the conquering tools of warfare in the 21st century. They have enabled the alliance to grow to 30 full-fledged members, to conclude official partnerships with 20 Partnership for Peace nations, as well as to develop relationships with numerous other nations from disparate corners of the earth, from Australia to Colombia to Pakistan. The great deterrents in today’s conflicts are not so much weapons as they are the financial costs of waging expeditionary wars and the potential damaging of financial systems. In this environment, communities of peace built on a common foundation are capable of outlasting more powerful foes.

NATO is also capable of holding its own during armed conflicts when they arise. (Another discussion could be had about member nations’ willingness to uphold their article 5 commitment of mutual defense, but that is a separate issue.) NATO retains flexibility in the deployment of its rules of engagement, which allow member nations to pursue their individual national interests while retaining a unity of effort. Effective management of NATO forces requires mastery of this concept by commanders across echelons. Once achieved, it leaves the alliance with plenty of capabilities to accomplish the mission.

Irish poet Robert Lynd once said:

“The belief in the possibility of a short, decisive war appears to be one of the most ancient and dangerous of human delusions.”

The short wars envisioned by Lieber require justice to be the prevailing value in the pursuit of national objectives, and that in turn requires the actors pursuing these objectives to act justly.  The limited set of circumstances where this is achievable make his theory complicated enough to make unwise policy.  The abuses of the Code’s ideas that took place in subsequent conflicts, like the one in the Philippines at the turn of the 20th century, make this clear.  As Witt demonstrated in Lincoln’s Code, the principle of military necessity acted as a cloak that attempted to legitimize abhorrent acts.

Whether organizations like NATO go too far in their pursuit of peace, whether they are influenced too much by groups trying to humanize an inherently inhumane act, strike me as unnecessary questions in today’s environment. Competition will indeed manifest itself as “forever wars.” I find this outcome preferable to the alternative of a persistent nuclear threat. 

Final Thoughts

I have found that even dream jobs can begin to show their faults after a few weeks. While NATO certainly suffers from its shortcomings, this job never lost its appeal. In fact, most of what I initially saw as shortcomings eventually appeared to have been deliberate components of NATO’s grand design. The endless hours needed to exhaust every opinion on a topic until consensus is reached certainly can be challenging. The fact that every nation gets a voice at all, however, is truly amazing.

One of my mentors at NATO once told me,

“The beauty of NATO is that it is.”

I hope that despite its challenges in the future, it will always continue to be.