Lieber Code

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.

The Lieber Code also contained one of the first explicit prohibitions on rape.[5] Paragraphs 44 and 47 of the Lieber Code contained provisions prohibiting several crimes including '(...) all rape (...) by an American soldier in a hostile country against its inhabitants (...) under the penalty of death, or such other severe punishment as may seem adequate for the gravity of the offense.'[6] Thus, the only enforcement mechanisms were the military commanders themselves, having the right to execute the soldiers immediately.[5]

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.[7][8]

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.[9]

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.[9]

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 theorist 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 legitimize its expansion in the move to Emancipation and a more aggressive war effort.[10]

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.[11] It authorized the shooting on sight of all persons not in uniform acting as soldiers and those committing, or seeking to commit, sabotage.[12]

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. [...] 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.

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.[9]

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.[9]

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.[13] 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).

In 2015, the United States Department of Defense published its Law of War Manual.[14][15] It was updated and revised in May 2016.[16] The Manual explicitly refers to the Lieber Code, and the Lieber Code's influence on the Law of War Manual is apparent throughout.[17]