The Lieber Code of April 24, 1863, also known as Instructions for the Government of Armies of the United States in the Field, General Order № 100, or Lieber Instructions, was an instruction signed by US President Abraham Lincoln to the Union Forces of the United States during the American Civil War that dictated how soldiers should conduct themselves in wartime. Its name reflects its author, the German-American legal scholar and political philosopher Franz Lieber.
Lieber had fought for Prussia in the Napoleonic Wars and had been wounded at the Battle of Waterloo. He had lived and taught for two decades in South Carolina, where he was exposed to the horrors of slavery. Beginning in October 1861, as professor of history and political science at what became Columbia University, Lieber delivered a series of lectures at the new Law School entitled “The Laws and Usages of War”. He believed the methods used in war needed to align with the goals and that the ends must justify the means, and he published the lectures as “International Law, or, Rules Regulating the Intercourse of States in Peace and War”.
During the American Civil War, soldiers were faced with a number of ethical dilemmas. Lieber knew about some from his own European wartime experiences, as well as through his sons (two of whom fought for the Union, and another died fighting for the Confederacy near Williamsburg). While in St. Louis searching for one of his sons, who had been wounded at Fort Donelson, Lieber met Union General Henry Halleck, who had been a lawyer in civilian life. As the war dragged on, the treatment of spies, guerrilla warriors, and civilian sympathizers became especially troublesome. So too was the treatment of escaped slaves, who were forbidden to return to their owners by an order of March 13, 1862. After Halleck became general-in-chief in July, 1862, he solicited Lieber’s views. The professor responded with a report, “Guerilla Parties Considered With Reference to the Laws and Usages of War”, and Halleck ordered 5000 copies printed. That same summer, Lieber advised Secretary of War Edwin Stanton concerning the “military use of colored persons”.
By year’s end, Halleck and Stanton invited Lieber to Washington to revise the 1806 Articles of War. Other members of the revision committee included Major Generals Ethan Allen Hitchcock, George Cadwalader, and George L. Hartsuff, and Brigadier General John Henry Martindale, but essentially Lieber was left to draft instructions for Union soldiers facing these situations. Halleck edited them to ensure nothing conflicted with Lincoln‘s Emancipation Proclamation. Then Lincoln issued them in April, 1863.
The main sections concerned martial law, military jurisdiction, and the treatment of spies, deserters, and prisoners of war.
The document insisted upon the humane, ethical treatment of populations in occupied areas. It was the first codified law that expressly forbade giving “no quarter” to the enemy (i.e. killing prisoners of war), except in such cases when the survival of the unit that held these prisoners was threatened. It forbade the use of poisons, stating that use of such puts any force who uses them entirely outside the pale of the civilized nations and peoples; it forbade the use of torture to extract confessions; it described the rights and duties of prisoners of war and of capturing forces. It described the state of war, the state of occupied territories, and the ends of war, and discusses permissible and impermissible means to attain those ends; it discussed the nature of states and sovereignties, and insurrections, rebellions, and wars. As such, it is widely considered to be the first written recital of the customary law of war, in force between the civilized nations and peoples since time immemorial, and the precursor to the Hague Regulations of 1907, the treaty-based restatement of the customary law of war.
Slavery and black prisoners of war
The Lieber Code was probably commissioned by the Lincoln Administration to deal with the crisis touched off by the Emancipation Proclamation, which the Confederacy insisted was in violation of the customary rules of warfare. Moreover, Confederate officials such as Jefferson Davis had announced that the Confederacy would treat black Union soldiers as criminals, not as soldiers, subject to execution or re-enslavement upon capture.
The Lieber Code defended the lawfulness of Emancipation under the laws of war and insisted that those same laws prohibited discrimination on the basis of color among combatants.
One recent author says that the Code’s association with Emancipation and the problem of black Union soldiers was so close that it ought to be called not Lieber’s Code but Lincoln‘s Code since it was part and parcel of the most important decision of Lincoln‘s presidency.
Both the Lieber Code and the Hague Convention of 1907, which took much of the Lieber Code and wrote it into the international treaty law, included practices that would be considered illegal or extremely questionable by today’s standards. In the event of the violation of the laws of war by an enemy, the Code permitted reprisal (by musketry) against the enemy’s recently captured POWs; it permitted the summary execution (by musketry) of spies, saboteurs, francs-tireurs, and guerrilla forces, if caught in the act of carrying out their missions. (These allowable practices were later abolished by the Third and Fourth Geneva Conventions of 1949, following World War II, which saw these practices in the hands of totalitarian states used as the rule rather than the exception to such.)
Such terms reflected Lieber’s deep interest in the ideas of Prussian military strategist Carl von Clausewitz. They also arose out of one of the Code’s central aims, which was not merely to limit the war, but to legitimate its expansion in the move to Emancipation and a more aggressive war effort.
However, the code envisioned a reciprocal relationship between the population and the Army. As long as the population did not resist military authority, it was to be treated well. Should the inhabitants violate this compact by taking up arms and supporting guerrilla movements, then they were open to sterner measures. Among these were the imposition of fines, the confiscation and/or destruction of property, the imprisonment and/or expulsion of civilians who aided guerrillas, the relocation of populations, the taking of hostages, and the possible execution of guerrillas who failed to abide by the laws of war. It authorized the shooting on sight of all persons not in uniform acting as soldiers and those committing, or seeking to commit, sabotage.
Part of the Code follows:
14. Military necessity, as understood by modern civilized nations, consists in the necessity of those measures which are indispensable for securing the ends of the war, and which are lawful according to the modern law and usages of war.
15. Military necessity admits of all direct destruction of life or limb of armed enemies, and of other persons whose destruction is incidentally unavoidable in the armed contests of the war; it allows of the capturing of every armed enemy, and every enemy of importance to the hostile government, or of peculiar danger to the captor; it allows of all destruction of property, and obstruction of the ways and channels of traffic, travel, or communication, and of all withholding of sustenance or means of life from the enemy; of the appropriation of whatever an enemy’s country affords necessary for the subsistence and safety of the Army, and of such deception as does not involve the breaking of good faith either positively pledged, regarding agreements entered into during the war, or supposed by the modern law of war to exist. (…But…) Men who take up arms against one another in public war do not cease on this account to be moral beings, responsible to one another and to God.
16. Military necessity does not admit of cruelty—that is, the infliction of suffering for the sake of suffering or for revenge, nor of maiming or wounding except in fight, nor of torture to extort confessions. It does not admit of the use of poison in any way, nor of the wanton devastation of a district. It admits of deception, but disclaims acts of perfidy; and, in general, military necessity does not include any act of hostility which makes the return to peace unnecessarily difficult.
In the Civil War
Historians have often dismissed the role of the Code in the war effort. While it is true that commanders such as William Tecumseh Sherman rarely, if ever, consulted the Code in making combat decisions, the Code played a significant role nonetheless in the war’s last two years. It provided a blueprint for hundreds of war crimes trials (i.e., charging people for violations of the laws and customs of war). Also, its provisions on black soldiers bolstered the Union’s unpopular decision to cease prisoner exchanges so long as the South refused to exchange black prisoners on equal terms with white ones.
In international law
Participants in the international Hague Peace Conferences used Lieber’s text as the basis for negotiations which resulted in the Hague Conventions of 1899 and 1907. These two international agreements set forth laws of land and naval warfare. Subsequently, during World War I and World War II, many of these laws were broken. Following World War II, jurists at the Nuremberg Trials and the Tokyo Trials ruled that by 1939 the rules for armed conflicts, particularly those concerning belligerent and neutral nationals, had been recognized by all civilized nations and thus could apply to officials even of countries that never signed the Hague Conventions. Some features of the Lieber Code are still evident in the Geneva Conventions of 1949.
An abridged version of the Lieber Code was published in 1899 in The War of the Rebellion: A Compilation of the Official Records of the Union and Confederate Armies. Lieber’s son, Guido Norman Lieber, was Judge Advocate General of the Army from 1895 until 1901, during the Spanish–American War and Philippine–American War. The Lieber Code therefore was used extensively during this period when considering and litigating actions by American forces against the native population and Philippine revolutionaries (e.g., J. Franklin Bell and Littleton Waller).
US Law of War Manual
In 2015, the United States Department of Defense published its Law of War Manual. It was updated and revised in May 2016. The Manual explicitly refers to the Lieber Code, and the Lieber Code’s influence on the Law of War Manual is apparent throughout.