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Freedom and Restraint—A Commentary by John Fabian Witt ’99

The following commentary was posted on nytimes.com on September 22, 2012.

Freedom and Restraint
By John Fabian Witt ’99

On Sept. 22, 1862 - 150 years ago today - Abraham Lincoln announced the Emancipation Proclamation, promising to free the slaves in any state still in rebellion on Jan. 1, 1863. Americans have celebrated Lincoln's proclamation, and argued about its meaning, ever since. But there's a surprising legacy that few Americans know anything about, one that historians have overlooked, even though it shows just how thoroughly American ideas of freedom reshaped the globe. Emancipation touched off a crisis for the principle of humanitarian limits in wartime and transformed the international laws of war. In the crucible of emancipation, Lincoln created the rules that now govern soldiers around the world.

Ever since 1775, when the royal governor of Virginia offered freedom to slaves who would turn against their revolutionary masters, American soldiers and statesmen held that freeing an enemy's slaves was anathema to civilized warfare. George Washington and the Continental Congress complained bitterly when British forces carried away slaves when they left New York in 1783.

In the War of 1812, British raids along the Chesapeake Bay encouraged thousands of slaves to escape to freedom. For more than a decade after the war ended, the American government pursued compensation from the British, contending that the laws of war protected slave owners from enemy depredations.

The irony of a humanitarian law that protected slave owners rather than slaves was not lost on European critics. But Americans argued that to seize an enemy's slaves was to make war on civilian economic resources.

White Southerners further argued that arming an enemy's slaves invited terrible atrocities by freed people against their former masters. Nineteenth-century Americans knew that the servile rebellions of antiquity had involved horrific violence: the Haitian revolution in the 1790s led to the slaughter of white slaveholders, while several abortive slave revolts in the American South showed that the pent-up violence of slavery could explode in bursts of nightmarish terror.

It was no surprise, then, that Southern whites reacted to Lincoln's proclamation with fury. Jefferson Davis, the president of the Confederacy, condemned it as barbaric and inhumane, and he swore never to recognize black Union soldiers as entitled to the treatment afforded to prisoners of war. Instead he promised to punish them and their white officers as criminals, subject to enslavement or execution. The Union pledged to retaliate in turn. It soon seemed that efforts to limit the war might collapse altogether.

The South's threats forced the Union to restate its position on the laws of war. In December 1862, three weeks before the final emancipation order was to go into effect, and just as criticism of emancipation was reaching its height, Lincoln's general in chief, Henry W. Halleck, commissioned a pamphlet-length statement of the Union's view of the laws of war.

Drafted by the Columbia professor Francis Lieber and approved by Lincoln himself, the code set out a host of humane rules: it prohibited torture, protected prisoners of war and outlawed assassinations. It distinguished between soldiers and civilians and it disclaimed cruelty, revenge attacks and senseless suffering.

Most of all, the code defended the freeing of enemy slaves and the arming of black soldiers as a humanitarian imperative, not as an invitation to atrocity. The code announced that free armies were like roving institutions of freedom, abolishing slavery wherever they went. And it defended black soldiers by insisting that the laws of war made "no distinction of color" - indeed, mistreatment of black soldiers would warrant righteous retaliation by the Union.

The pocket-size pamphlet quickly became the blueprint for a new generation of treaties, up to the Geneva Conventions of 1949. Strong nations like Prussia and France had long suspected that law-of-war initiatives were little more than maneuvering by weaker countries and closet pacifists hoping to make war more difficult. Lincoln's code broke that diplomatic logjam: It contained no hidden European agenda, and no one could accuse the Lincoln administration of trying to hold back strong armies.

To the contrary, the code had been devised just as Lincoln abandoned what he called the "rose-water" tactics of the war's first year in favor of the much more aggressive strategy signaled by emancipation.

And it set in motion the great paradox of the modern laws of war. These laws arose out of the greatest moral triumph of modern political history - emancipation - and they aimed to place outer limits on war's destruction. In a sense, they succeeded: the feared terrors of a mass slave insurrection never came to pass.

But by authorizing freedom, the new code also licensed a powerful and dangerous war strategy. It was a tool of the Union war effort, like the Springfield rifle and the Minié ball. That is why the Lincoln administration issued it, and that is why the most powerful states in the European world signed on to versions of it in the decades that followed.

The rules of armed conflict today arise directly out of Lincoln's example. They restrain brutality. But by placing a stamp of approval on "acceptable" ways to make war, they legitimate terrible violence. The law does not relieve war of all its terrors; it does not even purport to. But it stands as a living reminder, a century and a half later, of how thoroughly the United States' most significant moment still shapes our moral universe.

John Fabian Witt is a professor at Yale Law School and the author of "Lincoln's Code: The Laws of War in American History.