Lieber Code
Encyclopedia
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 soldier
s should conduct themselves in wartime
. 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.
" 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, rebellion
s, and war
s. 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.
(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. (These allowable practices were later abolished by the Third
and Fourth Geneva Convention
s 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.)
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.
as a justification and later a defense for actions against the native population (see J. Franklin Bell and Littleton Waller).
Numerous academics 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.”
General order
In militaries, a general order is a published directive, originated by a commander, and binding upon all personnel under his command, the purpose of which is to enforce a policy or procedure unique to his unit's situation which is not otherwise addressed in applicable service regulations, military...
№ 100, or Lieber Instructions, was an instruction signed by President Abraham Lincoln
Abraham Lincoln
Abraham Lincoln was the 16th President of the United States, serving from March 1861 until his assassination in April 1865. He successfully led his country through a great constitutional, military and moral crisis – the American Civil War – preserving the Union, while ending slavery, and...
to the Union
Union (American Civil War)
During the American Civil War, the Union was a name used to refer to the federal government of the United States, which was supported by the twenty free states and five border slave states. It was opposed by 11 southern slave states that had declared a secession to join together to form the...
Forces of the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
during the American Civil War
American Civil War
The American Civil War was a civil war fought in the United States of America. In response to the election of Abraham Lincoln as President of the United States, 11 southern slave states declared their secession from the United States and formed the Confederate States of America ; the other 25...
that dictated how soldier
Soldier
A soldier is a member of the land component of national armed forces; whereas a soldier hired for service in a foreign army would be termed a mercenary...
s should conduct themselves in wartime
War
War is a state of organized, armed, and often prolonged conflict carried on between states, nations, or other parties typified by extreme aggression, social disruption, and usually high mortality. War should be understood as an actual, intentional and widespread armed conflict between political...
. It was named after the German-American jurist
Jurist
A jurist or jurisconsult is a professional who studies, develops, applies, or otherwise deals with the law. The term is widely used in American English, but in the United Kingdom and many Commonwealth countries it has only historical and specialist usage...
and political philosopher Francis Lieber
Francis Lieber
Francis Lieber , known as Franz Lieber in Germany, was a German-American jurist, gymnast and political philosopher. He edited an Encyclopaedia Americana...
.
The main sections were concerned with martial law
Martial law
Martial law is the imposition of military rule by military authorities over designated regions on an emergency basis— only temporary—when the civilian government or civilian authorities fail to function effectively , when there are extensive riots and protests, or when the disobedience of the law...
, military jurisdiction
Jurisdiction
Jurisdiction is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility...
, treatment of spies
SPY
SPY is a three-letter acronym that may refer to:* SPY , ticker symbol for Standard & Poor's Depositary Receipts* SPY , a satirical monthly, trademarked all-caps* SPY , airport code for San Pédro, Côte d'Ivoire...
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 quarterNo quarter
A victor gives no quarter when the victor shows no clemency or mercy and refuses to spare the life in return for the surrender at discretion of a vanquished opponent....
" 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
Civilization
Civilization is a sometimes controversial term that has been used in several related ways. Primarily, the term has been used to refer to the material and instrumental side of human cultures that are complex in terms of technology, science, and division of labor. Such civilizations are generally...
; it forbade the use of torture
Torture
Torture is the act of inflicting severe pain as a means of punishment, revenge, forcing information or a confession, or simply as an act of cruelty. Throughout history, torture has often been used as a method of political re-education, interrogation, punishment, and coercion...
to extract confessions; it described the rights and duties of prisoners of war and of capturing forces. It described the state of war
State of War
State of war may refer to:*a situation where two or more states are at war with each other, with or without a real armed conflict*State of War , a book by James Risen which makes numerous controversial allegations about Central Intelligence Agency activities*State of War , a real-time strategy...
, the state of occupied territories
Occupied territories
Occupied territory is territory under military occupation. Occupation is a term of art in international law; in accordance with Article 42 of the Laws and Customs of War on Land ; October 18, 1907, territory is considered occupied when it is actually placed under the authority of the hostile army...
, the ends of war, and discusses permissible and impermissible means to attain those ends; it discussed the nature of states
Nation-state
The nation state is a state that self-identifies as deriving its political legitimacy from serving as a sovereign entity for a nation as a sovereign territorial unit. The state is a political and geopolitical entity; the nation is a cultural and/or ethnic entity...
and sovereignties
Sovereignty
Sovereignty is the quality of having supreme, independent authority over a geographic area, such as a territory. It can be found in a power to rule and make law that rests on a political fact for which no purely legal explanation can be provided...
, and insurrections, rebellion
Rebellion
Rebellion, uprising or insurrection, is a refusal of obedience or order. It may, therefore, be seen as encompassing a range of behaviors aimed at destroying or replacing an established authority such as a government or a head of state...
s, and war
War
War is a state of organized, armed, and often prolonged conflict carried on between states, nations, or other parties typified by extreme aggression, social disruption, and usually high mortality. War should be understood as an actual, intentional and widespread armed conflict between political...
s. As such, it is widely considered to be the first written recital of the customary
Customary international law
Customary international law are those aspects of international law that derive from custom. Along with general principles of law and treaties, custom is considered by the International Court of Justice, jurists, the United Nations, and its member states to be among the primary sources of...
law of war, in force between the civilized nations and peoples since time immemorial
Time immemorial
Time immemorial is a phrase meaning time extending beyond the reach of memory, record, or tradition, indefinitely ancient, "ancient beyond memory or record"...
, and the precursor to the Hague Regulations of 1907, the treaty-based restatement of the customary
Customary international law
Customary international law are those aspects of international law that derive from custom. Along with general principles of law and treaties, custom is considered by the International Court of Justice, jurists, the United Nations, and its member states to be among the primary sources of...
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 reprisalReprisal
In international law, a reprisal is a limited and deliberate violation of international law to punish another sovereign state that has already broken them. Reprisals in the laws of war are extremely limited, as they commonly breached the rights of civilians, an action outlawed by the Geneva...
(by musketry) against the enemy's recently captured POWs; it permitted the summary battlefield punishment (by musketry) of spies
Espionage
Espionage or spying involves an individual obtaining information that is considered secret or confidential without the permission of the holder of the information. Espionage is inherently clandestine, lest the legitimate holder of the information change plans or take other countermeasures once it...
, saboteurs, francs-tireurs
Francs-tireurs
Francs-tireurs – literally "free shooters" – was used to describe irregular military formations deployed by France during the early stages of the Franco-Prussian War...
, and guerrilla forces, if caught in the act of carrying out their missions. (These allowable practices were later abolished by the Third
Third Geneva Convention
The Third Geneva Convention, relative to the treatment of prisoners of war, is one of the four treaties of the Geneva Conventions. It was first adopted in 1929, but was significantly updated in 1949...
and Fourth Geneva Convention
Fourth Geneva Convention
The Geneva Convention relative to the Protection of Civilian Persons in Time of War, commonly referred to as the Fourth Geneva Convention and abbreviated as GCIV, is one of the four treaties of the Geneva Conventions. It was adopted in August 1949, and defines humanitarian protections for civilians...
s 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.)
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.
Philippine-American War
The Lieber Code was used extensively during the Philippine-American WarPhilippine-American War
The Philippine–American War, also known as the Philippine War of Independence or the Philippine Insurrection , was an armed conflict between a group of Filipino revolutionaries and the United States which arose from the struggle of the First Philippine Republic to gain independence following...
as a justification and later a defense for actions against the native population (see J. Franklin Bell and Littleton Waller).
Numerous academics have questioned whether the acts of American forces, specifically the practice of reprisal
Reprisal
In international law, a reprisal is a limited and deliberate violation of international law to punish another sovereign state that has already broken them. Reprisals in the laws of war are extremely limited, as they commonly breached the rights of civilians, an action outlawed by the Geneva...
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
Customary international law
Customary international law are those aspects of international law that derive from custom. Along with general principles of law and treaties, custom is considered by the International Court of Justice, jurists, the United Nations, and its member states to be among the primary sources of...
right of reprisal
Reprisal
In international law, a reprisal is a limited and deliberate violation of international law to punish another sovereign state that has already broken them. Reprisals in the laws of war are extremely limited, as they commonly breached the rights of civilians, an action outlawed by the Geneva...
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
Torture
Torture is the act of inflicting severe pain as a means of punishment, revenge, forcing information or a confession, or simply as an act of cruelty. Throughout history, torture has often been used as a method of political re-education, interrogation, punishment, and coercion...
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
Water cure (torture)
Water cure as a term for a form of torture refers to a method in which the victim is forced to drink large quantities of water in a short time, resulting in gastric distension, water intoxication and possibly death....
, 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.”
See also
- Command responsibilityCommand responsibilityCommand responsibility, sometimes referred to as the Yamashita standard or the Medina standard, and also known as superior responsibility, is the doctrine of hierarchical accountability in cases of war crimes....
- International criminal lawInternational criminal lawInternational criminal law is a body of international law designed to prohibit certain categories of conduct commonly viewed as serious atrocities and to make perpetrators of such conduct criminally accountable for their perpetration. Principally, it deals with genocide, war crimes, crimes against...
- Laws of warLaws of warThe law of war is a body of law concerning acceptable justifications to engage in war and the limits to acceptable wartime conduct...
- War crimeWar crimeWar crimes are serious violations of the laws applicable in armed conflict giving rise to individual criminal responsibility...
s
External links
- The full text of the Lieber Code
- The full text of the Lieber Code at the Yale Avalon ProjectAvalon ProjectThe Avalon Project is a digital library of documents relating to law, history and diplomacy. The project is part of the Yale Law School Lillian Goldman Law Library....