THE LIEBER CODE

It was written right on the eve of a new era in the international law, the one that focus on
dealing with war. It was the first set of actual rules that were issued and defined in times
of war. It was very shortly thereafter, in 1864, that we see the first appearance of
international treaties, that was the First Geneva Convention. A treaty is a formal
agreement between nations, formally concluded and ratified.

1862, Franics Lieber, It is a United States code of behavior issued in 1863 by president
Abraham Lincoln in the midst of the American Civil War. It was the first time in modern
world history that the rules of war were laid in a single document, and it was the first
time that was issued to troops by their commanders in chief. Because of that, it is written
in a straightforward language.

The Lieber Code came out of the understanding that there ought to be agreements to
arrive at a generally acceptable codification of the laws and customs of war (in the
American Civil War there were 600.000 casualties). It was very influential in the
Development of the Geneva Conventions.

The Lieber Code is kind of flexible and at times may even seem as inconsistent because
of two reasons:

- Lieber is trying to accommodate two different perspectives: to win the war but to
make soldiers act morally, avoiding unnecessary cruelty and minimizing the
hardships of war. These two objectives do not fit easily.
- It is very specific in what it allows and what it prohibits, but it is not perfect.
What is prohibited in some articles seems to be allowed in others. For example,
the Code prohibits torture, posion, wanton, destruction and cruelty… but on the
other hand it also allows for the destruction and of civilian property, the
bombardment of besieged city and even the starvaion of civilians. It requires the
prisoners of war to be treated humanely but it allows execution of those prisoners
if necessary.
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Of course, the Code has to be understood in the context of the ongoing war of the
moment. The war in 1963 was not going well for the Union under president Licoln (the
Army suffered 25.000 casualties in the three previous months in two terrible battles) , and
he believed that his armies were not fighting aggressively, that many commanders were
too reluctant to engage the Confederate army. He was compelled to abandon what he
called the “rosewater” approach to the conflict in favor of a far more aggressive strategy.
Lieber was tasked with drafting a code that would enable armies to fight aggressively on
American soil but with enough restrain to avoid total destruction of the enemy, that were,
after all, fellow Americans.

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Reading: Witt, Lincoln's Code

The project was breathtakingly ambitious, it aimed not only to establish rules to govern
the conduct of the Union Army but to set down usable form the accumulated customary
rules binding all the armies of the extended European world. The code protects prisoners
and forbids executions and assassinations. It announces a sharp distinction between men
in arms and non combatants. It prohibits the infliction of suffering for its own sake.The
157 code sets out rules for right conduct and provides rationales and general principles
that lie behind rules.

President Lincoln delivers the Code to the armies and the Confederacy, expecting them to
follow the rules he has set out. But what starts as an American project will cross the
Atlantic and become a global phenomenon. In 1870, the Prussian army adopted the
American Code as its own and other European nations followed. At the beginning of the
20th century, armies around the world issued field manuals inspired by the American
model. In 1899, diplomats and international lawyers turned the American code into the
first great treaty of the laws of the war, signed at The Hague by nations from all over the
world.

The enigma of the Lieber code was that it emerged amidst a war, in December 1962,
when Lincoln aimed to transform the war into a more aggressive one, not less. The usual
pattern of making rules of war is very different, as they typically come in the aftershock
of conflict.

Looking at it in a different light, Lieber’s code seems not so constrining after all. It
authorized the destruction of civilian property, the trapping and forced return of civilians
to besieged cities, and the starving of non combatants. It permitted executing prisoners in
case of necessity or in retaliation. It authorized the summary field execution of enemy
guerrillas. And in its most open-ended provision, the code authorized any measures
necessary to secure the ends of war and defend the country. “To save the country is
paramount to all other considerations”.

It gave a license to a man to be either a fiend or a gentleman. The basic rule of conduct in
Lieber’s Code was the test of military necessity. The code ruled out only four acts:
torture, assasination, the use of poison, and perfidy in violation of truce flags or
agreements between the warring parties. With these exceptions, armies could do virtually
anything so long it was necessary for securing the ends of the war.

The law of war Lincoln approved in early 1863 was not merely a constraint on the tactics
of the Union. It was also a weapon for the achievement of Union war aims. It is nor just a
humanitarian shield, it was also a sword of justice, a way of advancing the Emancipation
Proclamation and of arming the 200.000 black soldiers who would help to end slavery
once and for all.

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America and warfare laws

One story asserts that the actions of the United States after September, 11, 2001,
disrupted a long American tradition of respect for and participation in the international
laws of war. Critics of George W.Bush war on terror acts as the unse of enhanced
interrogation tactics, torture, kidnappings, and indefinite detenetions, not to mention the
disregard of GEneva Convention, betrayed a long-standing historical commitment to
international law’s code of conduct for war.

Others, including many critics of international law, adopt a different story of historical
rupture. For them, legal instrument as the Geneva Conventions of 1949, a series of
constraining statutes enacted by Congress in the 1970s and the 1980s and a controversial
treaty promulgated through the United Nations in 1977, that has culminated in the
International Criminal Court at the Hague, for the first time seems to threaten U.S policy
makers with criminal prosecutions for their wartime decisions.

However, the pattern that emerges if we look closely at the history of American warfare,
is the pattern of Lincoln and Lieber and the juxtaposition of the hard hand of war and the
laws of war that come to be known as the “American way of war”. Enlightenment rules
stand alongside wars of extermination on the Indian frontier. Lincoln’s code precedes
Sherman’s March to the Sea. The Hague Conferences of 1899 and 1907 bookend a
terrible war in the Philippines. The American-made charter for the Nuremberg trial is
initialed in the same weeks the United States drops atomic bombs on Hiroshima and
Nagasaki.

The laws of war have served as tools of practical moral judgment in moments of extreme
pressure. If the law of war is to do this work, however, and not merely be thrown
overboard at the first sign of danger. The hypocrisy claim can be found in conversations
about American power today in every quarter of the globe. Hypocrisy is the operative
logic of what is undoubtedly the most influential work of law and morality in the past
half century: Michael Walzer’s book Just and Unjust Wars. Written in the wake of the
Vietnam War, Walzer’s book identifies the moral aspirations of states and soldiers in war
and contrast those ideals with the acts of states and soldiers in combat.

The peculiarity of the laws of war is that HUMANITY and JUSTICE diverge by design.
For 250 years, the laws of war have sought to minimize the horrors of war by inviting
war’s participants to temporarily set aside the conviction that their cause is right.
Advocates of international law have aimed to create a parallel moral universe in which
questions of justice are bracketed for the sake of reducing human suffering. General
Order No. 100: Instructions for the Government of Armies of the United States in the
Field 24 April 1863.

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Section I : Martial law -- Military jurisdiction -- Military necessity -- Retaliation

Art. 4. Martial Law is simply military authority exercised in accordance with the law and
usages of war. Military oppression is not Martial Law: it is the abuse of the power which
that law confers. As Martial Law is executed by military force, it is incumbent upon those
who administer it to be strictly guided by the principles of justice, honor, and humanity --
virtues adorning a soldier even more than other men, for the very reason that he possesses
the power of his arms against the unarmed.

Art. 5. To save the country is paramount to all other considerations.

Art. 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.

Art. 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. 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.

Art. 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.

Art. 17. War is not carried on by arms alone. It is lawful to starve the hostile belligerent,
armed or unarmed, so that it leads to the speedier subjection of the enemy.

Art. 19. Commanders, whenever admissible, inform the enemy of their intention to
bombard a place, so that the noncombatants, and especially the women and children, may
be removed before the bombardment commences. But it is no infraction of the common
law of war to omit thus to inform the enemy. Surprise may be a necessity.

Art. 20. Public war is a state of armed hostility between sovereign nations or
governments. It is a law and requisite of civilized existence that men live in political,

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continuous societies, forming organized units, called states or nations, whose constituents
bear, enjoy, suffer, advance and retrograde together, in peace and in war.

Art. 21. The citizen or native of a hostile country is thus an enemy, as one of the
constituents of the hostile state or nation, and as such is subjected to the hardships of the
war.

Art. 22. Nevertheless, as civilization has advanced during the last centuries, so has
likewise steadily advanced, especially in war on land, the distinction between the private
individual belonging to a hostile country and the hostile country itself, with its men in
arms. The principle has been more and more acknowledged that the unarmed citizen is to
be spared in person, property, and honor as much as the exigencies of war will admit.

Art. 23. Private citizens are no longer murdered, enslaved, or carried off to distant parts,
and the inoffensive individual is as little disturbed in his private relations as the
commander of the hostile troops can afford to grant in the overruling demands of a
vigorous war.

Art. 29. Modern times are distinguished from earlier ages by the existence, at one and the
same time, of many nations and great governments related to one another in close
intercourse. Peace is their normal condition; war is the exception. The ultimate object of
all modern war is a renewed state of peace. The more vigorously wars are pursued, the
better it is for humanity. Sharp wars are brief.

Art. 30. Ever since the formation and coexistence of modern nations, and ever since wars
have become great national wars, war has come to be acknowledged not to be its own
end, but the means to obtain great ends of state, or to consist in defense against wrong;
and no conventional restriction of the modes adopted to injure the enemy is any longer
admitted; but the law of war imposes many limitations and restrictions on principles of
justice, faith, and honor.

Section II : Public and private property of the enemy -- Protection of persons, and
especially of women, of religion, the arts and sciences -- Punishment of crimes against
the inhabitants of hostile countries

Art. 31. A victorious army appropriates all public money, seizes all public movable
property until further direction by its government, and sequesters for its own benefit or of
that of its government all the revenues of real property belonging to the hostile
government or nation. The title to such real property remains in abeyance during military
occupation, and until the conquest is made complete.

Art. 33. It is no longer considered lawful -- on the contrary, it is held to be a serious

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Art. 34. As a general rule, the property belonging to churches, to hospitals, or other
establishments of an exclusively charitable character, to establishments of education, or
foundations for the promotion of knowledge, whether public schools, universities,
academies of learning or observatories, museums of the fine arts, or of a scientific
character -- such property is not to be considered public property in the sense of
paragraph 31; but it may be taxed or used when the public service may require it.

Art. 35. Classical works of art, libraries, scientific collections, or precious instruments,
such as astronomical telescopes, as well as hospitals, must be secured against all
avoidable injury, even when they are contained in fortified places whilst besieged or
bombarded.

Art. 37. The United States acknowledge and protect, in hostile countries occupied by
them, religion and morality; strictly private property; the persons of the inhabitants,
especially those of women: and the sacredness of domestic relations. Offenses to the
contrary shall be rigorously punished.
This rule does not interfere with the right of the victorious invader to tax the people or
their property, to levy forced loans, to billet soldiers, or to appropriate property,
especially houses, lands, boats or ships, and churches, for temporary and military uses.

Art. 38. Private property, unless forfeited by crimes or by offenses of the owner, can be
seized only by way of military necessity, for the support or other benefit of the army or of
the United States.

Art. 44. All wanton violence committed against persons in the invaded country, all
destruction of property not commanded by the authorized officer, all robbery, all pillage
or sacking, even after taking a place by main force, all rape, wounding, maiming, or
killing of such inhabitants, are prohibited under the penalty of death, or such other severe
punishment as may seem adequate for the gravity of the offense.
A soldier, officer or private, in the act of committing such violence, and disobeying a
superior ordering him to abstain from it, may be lawfully killed on the spot by such
superior.

Art. 45. All captures and booty belong, according to the modern law of war, primarily to
the government of the captor.

Art. 46. Neither officers nor soldiers are allowed to make use of their position or power in
the hostile country for private gain, not even for commercial transactions otherwise
legitimate.

Art. 47. Crimes punishable by all penal codes, such as arson, murder, maiming, assaults,
highway robbery, theft, burglary, fraud, forgery, and rape, if committed by an American
soldier in a hostile country against its inhabitants, are not only punishable as at home, but
in all cases in which death is not inflicted, the severer punishment shall be preferred.

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Section III: Deserters -- Prisoners of war -- Hostages -- Booty on the battle-field

Art. 49. A prisoner of war is a public enemy armed or attached to the hostile army for
active aid, who has fallen into the hands of the captor, either fighting or wounded, on the
field or in the hospital, by individual surrender or by capitulation.
All soldiers, of whatever species of arms; all men who belong to the rising en masse of
the hostile country; all those who are attached to the army for its efficiency and promote
directly the object of the war, except such as are hereinafter provided for; all disabled
men or officers on the field or elsewhere, if captured; all enemies who have thrown away
their arms and ask for quarter, are prisoners of war, and as such exposed to the
inconveniences as well as entitled to the privileges of a prisoner of war.

Art. 56. A prisoner of war is subject to no punishment for being a public enemy, nor is
any revenge wreaked upon him by the intentional infliction of any suffering, or disgrace,
by cruel imprisonment, want of food, by mutilation, death, or any other barbarity.

Art. 57. So soon as a man is armed by a sovereign government and takes the soldier's
oath of fidelity, he is a belligerent; his killing, wounding, or other warlike acts are not
individual crimes or offenses. No belligerent has a right to declare that enemies of a
certain class, color, or condition, when properly organized as soldiers, will not be treated
by him as public enemies.

Art. 59. A prisoner of war remains answerable for his crimes committed against the
captor's army or people, committed before he was captured, and for which he has not
been punished by his own authorities.

Art. 60. It is against the usage of modern war to resolve, in hatred and revenge, to give no
quarter. No body of troops has the right to declare that it will not give, and therefore will
not expect, quarter; but a commander is permitted to direct his troops to give no quarter,
in great straits, when his own salvation makes it impossible to cumber himself with
prisoners.

Art. 61. Troops that give no quarter have no right to kill enemies already disabled on the
ground, or prisoners captured by other troops.

Art. 62. All troops of the enemy known or discovered to give no quarter in general, or to
any portion of the army, receive none.

Art. 63. Troops who fight in the uniform of their enemies, without any plain, striking, and
uniform mark of distinction of their own, can expect no quarter.

Art. 65. The use of the enemy's national standard, flag, or other emblem of nationality,
for the purpose of deceiving the enemy in battle, is an act of perfidy by which they lose
all claim to the protection of the laws of war.

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Art. 67. The law of nations allows every sovereign government to make war upon another
sovereign state, and, therefore, admits of no rules or laws different from those of regular
warfare, regarding the treatment of prisoners of war, although they may belong to the
army of a government which the captor may consider as a wanton and unjust assailant.

Art. 68. Modern wars are not internecine wars, in which the killing of the enemy is the
object. The destruction of the enemy in modern war, and, indeed, modern war itself, are
means to obtain that object of the belligerent which lies beyond the war.
Unnecessary or revengeful destruction of life is not lawful.

Art. 70. The use of poison in any manner, be it to poison wells, or food, or arms, is
wholly excluded from modern warfare. He that uses it puts himself out of the pale of the
law and usages of war.

Art. 71. Whoever intentionally inflicts additional wounds on an enemy already wholly
disabled, or kills such an enemy, or who orders or encourages soldiers to do so, shall
suffer death, if duly convicted, whether he belongs to the Army of the United States, or is
an enemy captured after having committed his misdeed.

Art. 72. Money and other valuables on the person of a prisoner, such as watches or
jewelry, as well as extra clothing, are regarded by the American Army as the private
property of the prisoner, and the appropriation of such valuables or money is considered
dishonorable and is prohibited.

Art. 74. A prisoner of war, being a public enemy, is the prisoner of the government, and
not of the captor. No ransom cam be paid by a prisoner of war to his individual captor or
to any officer in command. The government alone releases captives, according to rules
prescribed by itself.

Art. 75. Prisoners of war are subject to confinement or imprisonment such as may be
deemed necessary on account of safety, but they are to be subjected to no other
intentional suffering or indignity. The confinement and mode of treating a prisoner may
be varied during his captivity according to the demands of safety.

Art. 76. Prisoners of war shall be fed upon plain and wholesome food, whenever
practicable, and treated with humanity.They may be required to work for the benefit of
the captor's government, according to their rank and condition.

Art. 77. A prisoner of war who escapes may be shot or otherwise killed in his flight; but
neither death nor any other punishment shall be inflicted upon him simply for his attempt
to escape, which the law of war does not consider a crime. Stricter means of security shall
be used after an unsuccessful attempt at escape.
If, however, a conspiracy is discovered, the purpose of which is a united or general
escape, the conspirators may be rigorously punished, even with death; and capital
punishment may also be inflicted upon prisoners of war discovered to have plotted

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rebellion against the authorities of the captors, whether in union with fellow prisoners or
other persons.

Art. 78. If prisoners of war escape, and are captured again in battle after having rejoined
their own army, they shall not be punished for their escape, but shall be treated as simple
prisoners of war, although they will be subjected to stricter confinement.

Art. 79. Every captured wounded enemy shall be medically treated, according to the
ability of the medical staff.

Art. 80. Honorable men, when captured, will abstain from giving to the enemy
information concerning their own army, and the modern law of war permits no longer the
use of any violence against prisoners in order to extort the desired information or to
punish them for having given false information.

Section IV : Partisans -- Armed enemies not belonging to the hostile army -- Scouts --
Armed prowlers -- War-rebels

Art. 81. Partisans are soldiers armed and wearing the uniform of their army but belonging
to a corps which acts detached from the main body for the purpose of making inroads into
the territory occupied by the enemy. If captured, they are entitled to all the privileges of
the prisoner of war.

Art. 82. Men, or squads of men, who commit hostilities, whether by fighting, or inroads
for destruction or plunder, or by raids of any kind, without being part and portion of the
organized hostile army, and without sharing continuously in the war, but who do so with
intermitting returns to their homes and avocations, or with the occasional assumption of
the semblance of peaceful pursuits, divesting themselves of the character or appearance
of soldiers -- such men, or squads of men, are not public enemies, and, therefore, if
captured, are not entitled to the privileges of prisoners of war, but shall be treated
summarily as highway robbers or pirates.

Section V : Safe-conduct -- Spies -- War-traitors -- Captured messengers -- Abuse of the

Art. 88. A spy is a person who secretly, in disguise or under false pretense, seeks
information with the intention of communicating it to the enemy. The spy is punishable
with death by hanging by the neck, whether or not he succeed in obtaining the
information or in conveying it to the enemy.

Art. 89. If a citizen of the United States obtains information in a legitimate manner, and
betrays it to the enemy, be he a military or civil officer, or a private citizen, he shall
suffer death.
Art. 91. The war-traitor is always severely punished. If his offense consists in betraying
to the enemy anything concerning the condition, safety, operations, or plans of the troops
holding or occupying the place or district, his punishment is death.

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Art. 101. While deception in war is admitted as a just and necessary means of hostility,
and is consistent with honorable warfare, the common law of war allows even capital
punishment for clandestine or treacherous attempts to injure an enemy, because they are
so dangerous, and it is difficult to guard against them.

Section VI : Exchange of prisoners -- Flags of truce -- Flags of protection

Art. 107. A prisoner of war is in honor bound truly to state to the captor his rank; and he
is not to assume a lower rank than belongs to him, in order to cause a more advantageous
exchange, nor a higher rank, for the purpose of obtaining better treatment.

Art. 114. If it be discovered, and fairly proved, that a flag of truce has been abused for
surreptitiously obtaining military knowledge, the bearer of the flag thus abusing his
sacred character is deemed a spy.
So sacred is the character of a flag of truce, and so necessary is its sacredness, that its
abuse is an especially heinous offense.

Art. 115. It is customary to designate by certain flags (usually yellow) the hospitals in
places which are shelled, so that the besieging enemy may avoid firing on them. The
same has been done in battles, when hospitals are situated within the field of the
engagement.

Art. 117. It is justly considered an act of bad faith, of infamy or fiendishness, to deceive
the enemy by flags of protection. Such act of bad faith may be good cause for refusing to
respect such flags.

Section VIII : Armistice -- Capitulation

Art. 135. An armistice is the cessation of active hostilities for a period agreed between
belligerents. It must be agreed upon in writing, and duly ratified by the highest authorities
of the contending parties.

Art. 142. An armistice is not a partial or a temporary peace; it is only the suspension of
military operations to the extent agreed upon by the parties.

Section IX : Assassination

Art. 148. The law of war does not allow proclaiming either an individual belonging to the
hostile army, or a citizen, or a subject of the hostile government, an outlaw, who may be
slain without trial by any captor, any more than the modern law of peace allows such
intentional outlawry; on the contrary, it abhors such outrage. The sternest retaliation
should follow the murder committed in consequence of such proclamation, made by
whatever authority. Civilized nations look with horror upon offers of rewards for the
assassination of enemies as relapses into barbarism.

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