Lieber Code

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 President Abraham Lincoln to the Union Forces of the United States during the American Civil War that dictated how soldiers should conduct themselves in war time. It was named after the German-American jurist and political philosopher Francis Lieber.

The main sections were concerned with martial law, military jurisdiction, treatment of spies and deserters, and how prisoners of war should be treated.

Ethical treatment

The document insisted upon the humane, ethical treatment of populations in occupied areas. It was the first expressly 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, 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.

Sterner measures

Both the Lieber Code and the Hague Regulations of 1907, which took much of the Lieber Code and wrote it into the international treaty law, did comprehend practices that would be considered illegal or extremely questionable in this day and age. 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 battlefield punishment (by musketry) of spies, saboteurs, francs-tireurs, and guerrilla forces, if caught in the act of carrying out their missions.

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.

(These allowable practices were later abolished by the Third and Fourth Geneva Conventions of 1949, following the Second World War, which saw these practices in the hands of totalitarian states used as the rule rather than the exception to such.)

Philippine-American War

The Lieber Code was used extensively during the Philippine-American War as a justification and later a defense for actions against the native population (see J. Franklin Bell and Littleton Waller).

Worcester, Agoncillo, Boot, and Miller have questioned whether the acts of American forces, specifically the practice of reprisal by summary shooting of newly-captured Filipino POWs, during the Philippine-American War, were, by the standards of the day, war crimes. Instead, these scholars suggest that many of the acts were the lawful exercise of the customary right of reprisal for war crimes and atrocities committed by Filipino insurrectionist forces against American POWs, and were conducted to demonstrate to the insurrectionist forces that failure to respect the rights of American POWs would result in reprisals against Filipino POWs. Credible allegations prompting American reprisals against Filipino forces included the roasting alive of American POWs over fires, as well as the burial of living American POWs to their neck in dirt, followed by use of insects (specifically fire-ants) as means of execution.

Excesses by American forces in the carrying out of reprisals, such as extending them to non-combatants, were punished by court-martial. In addition, one unquestionable set of war crimes (under the Lieber Code and the later Hague Regulations of 1907) did take place during the Philippine-American War: the torture of certain Filipino insurrectionists, uncovered by the Lodge Committee. One particularly common means of torture was the use of what was then known as the water cure, by American forces, in one instance “...in order to secure information of the murder of Private O'Herne of Company I, who had been not only killed, but roasted and otherwise tortured before death ensued.”

The Lieber Code and the development of the laws of land warfare

Many point correctly to the Lieber Code as critical in the development of the laws of war. Interestingly, one researcher who analyzed the evolution of the laws of land warfare concludes that "following the publication of Lieber’s code as General Orders 100 in 1863, the United States did not effectively contribute anything to The Hague Laws relating to land warfare as they evolved during this period."

See also

• Command responsibility
• International criminal law
• Laws of war
• War crimes

External links

• The full text of the Lieber Code
• The full text of the Lieber Code at the Yale Avalon Project

References

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