Lieber Code
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The Lieber Code (General Orders No. 100, 24 April 1863) of the Adjutant General’s Office was the military law that governed the wartime conduct of the Union Army by defining and describing command responsibility for war crimes and crimes against humanity; and the military responsibilities of the Union soldier fighting the American Civil War (1861–1864) against the Confederate States of America.[1]
The Instructions for the Government of the Armies of the United States in the Field (Lieber Code) was written by Franz Lieber, a German lawyer, political philosopher, and veteran of war.
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History

At military age, the jurist Franz Lieber soldiered and fought in two wars, first for Prussia in the Napoleonic Wars (1803–1815) and then for the Greek War of Independence (1821) from the Ottoman Empire (1299–1922). In his later career, Lieber was an academic who worked in the Confederate States of America, at the College of South Carolina. Although not personally an abolitionist, he opposed slavery in principle and in practise, because Lieber had witnessed the brutalities of black chattel slavery in the U.S. in the course of two decades as a teacher in Confederacy, which he departed for New York in 1857.[2] In 1860, Prof. Lieber taught history and political science at the Columbia Law School, and publicly lectured about the “Laws and Usages of War” proposing that the laws of war correspond to a legitimate purpose for the war.[3]
Lieber had three sons; two in the Union Army, and one in the Confederate Army, killed in the Battle of Eltham's Landing (7 May 1862). Later in 1862, in St. Louis, Missouri, whilst searching for the Union-soldier son wounded at the Battle of Fort Donelson (11–16 February 1862), Lieber asked the help of his acquaintance Major General Henry W. Halleck, who had practised law before the war and had published the International Law, or, Rules Regulating the Intercourse of States in Peace and War (1861) a book of political philosophy emphasizing that the casus belli must legally correspond to the purpose of the war.[3]
In fighting the Confederacy, Union Army soldiers and officers faced ethical dilemmas of command responsibility about prisoners of war, because the military law in the 1806 Articles of War did not address the management and disposition of prisoners of war and guerrillas, spies and secret agents, and enemy civilians — nor the management and disposition of escaped black slaves, who were not to be repatriated to the Confederacy, per an Army Order dated 13 March 1862.[4]
To resolve the lack of legitimate authority, as the Commanding General of the Union Army, Gen. Halleck commissioned Prof. Lieber to write military laws specific to civil-war circumstances for the Union Army's correct management and disposal of POWs et al., because the 1806 Articles of War gave no guidance applicable to the warfare particular to the American Civil War. In the event, Lieber produced Guerilla Parties Considered with Reference to the Laws and Usages of War (1862), military law which gave no POW-rights or privileges to Confederate guerrillas on three functional disqualifications: (i) guerrillas are not uniformed soldiers in the army of a belligerent party; (ii) guerrillas have no formal chain of command; and (iii) guerrillas cannot take prisoners, as could an army unit.[5]
In summer 1862, Lieber advised Secretary of War Edwin Stanton that customary laws of war allowed the “military use of colored persons” as soldiers and as civilian workers. At year's end, Gen. Halleck and Secretary Stanton asked Lieber to revise the 1806 Articles of War (Uniform Code of Military Justice) and update that military law to include the considerations of military necessity and the humanitarian needs of civilian populations during wartime. The editorial-revision committee were Maj. Gen. Ethan A. Hitchcock and Maj. Gen. George Cadwalader, Maj. Gen. George L. Hartsuff and Brigadier General John Henry Martindale, who advised the jurist Lieber to write comprehensive military laws to govern the wartime conduct of the Union Army. Gen. Halleck edited Lieber’s military law to concur with the Emancipation Proclamation (1 January 1863), and, on 24 April 1863, President Lincoln promulgated the Lieber Code rules of war for the Union Army under the official title “General Orders No. 100, Instructions for the Government of the Armies of the United States in the Field.”[3]
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Legal provisions
The military law of General Orders No. 100 (the Lieber Code) concerns the practical particulars of martial law, military jurisdiction, and the treatment of spies, deserters, and prisoners of war (POW), as such, the Lieber Code is the first codification of the customary international law and of the law of war, and thus was the legal precursor to the Hague Convention of 1907, which restated and codified the particulars of the laws of war for the signatory countries.[6]
The judicial enforcement of the Lieber Code was at the discretion of the unit commander, including the right to order the summary execution of Confederate prisoners of war and of war-criminal soldiers of the Union Army.[7]
Ethics of warfare
As the modernization of the 1806 Articles of War, the military law of the Lieber Code defines and describes what is a state of war, what is military occupation, and explains the politico-military purposes of war; explains what are the permissible and the impermissible military means an army can employ to fight and win a war; and defines and describes the nature of the nation-state, the nature of national sovereignty, and what is rebellion.[8]
The Code requires the humane, ethical treatment of civil populations in areas occupied by the Union Army, and forbids the No Quarter policy of killing prisoners of war — except when taking prisoners endangers the capturing unit.[9] Moreover, concerning the ethics of fighting a civil war, Article 70, Section III stipulates that “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.”[10]
The Lieber Code forbids torture as warfare; thus Article 44, Section II prohibits “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.”[11]
Black prisoners of war
Concerning captured black soldiers of the Union Army, the president of the Confederacy, Jefferson Davis officially announced that the Confederacy would treat black Union soldiers as escaped slaves, not as soldiers; as such, black soldiers were subject to summary execution or to re-enslavement in the Confederacy.[12][13]
The Lieber Code was military law that concorded with the Emancipation Proclamation (1863) and prohibited racist discrimination against a black Union soldier being denied the rights and privileges of a prisoner of war.[14]
Hard measures
In defense against enemy violation of the laws of war, the Lieber Code allowed reprisal by musketry against enemy POWs, and allowed the summary execution of captured spies and saboteurs, paramilitary francs-tireurs and guerrillas, when any such enemy person is captured while executing attacks against the Union Army and the United States. The Code’s allowance of legal reprisal against prisoners of war reflected Lieber’s philosophic affinity with the Prussian militarism of Carl von Clausewitz, because the Lieber Code also legitimized and justified a war of aggression to expand the military range of the American Civil War to rapidly conquer the Confederacy and emancipate the slaves.[15]
The Code proposed a reciprocal relationship between the civilian population under military occupation by the Union Army. That civilian co-operation with the occupation ensured good treatment from the military authorities. That against guerrilla warfare and armed resistance to martial law the Union Army would subject the insubordinate civilians to imprisonment and death.[16]
- Some articles of war from Section I of the Lieber Code
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.
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Legacy
U.S. Civil War
In conquering the Confederacy, Gen. William Tecumseh Sherman based his Special Field Orders No. 120 (9 November 1864) for his army upon General Orders No. 100 (the Lieber Code) of the Union Army. To realize a peaceful military occupation of the state of Georgia, Special Field Order No. 120 stipulated that “in districts and neighborhoods where the army is unmolested no destruction of such property should be permitted; but, should guerrillas or bushwhackers molest our march, or should the inhabitants burn bridges, obstruct roads, or otherwise manifest local hostility, then army commanders should order and enforce a devastation more or less relentless according to the measure of such hostility.”[17] Moreover, the Lieber Code (1863) was the military law applied to the prosecution of war crimes and for equal prisoner-of-war exchanges between the Union Army and the Confederate Army, regardless of the skin color of the soldier.[14]
In international law
The participants in the Hague Peace Conferences used the Lieber Code (1863) as the basis for the international laws of war and codifications of war crime, which respectively produced the Hague Conventions of 1899 and 1907. In the aftermath of the Second World War (1939–1945) the jurists at the war-crime Nuremberg Trials (0000) and at the Tokyo Trials (oooo) formally determined that, by the year 1939, most every country in the world knew of the existence the laws of war and thus of the legal responsibilities of the belligerent parties, neutral countries, and displaced foreign nationals nationals.[14]
Philippine–American War
An abridged version of the Lieber Code was published in The War of the Rebellion: A Compilation of the Official Records of the Union and Confederate Armies (1899).[18] Lieber's son, Guido Norman Lieber, was the Judge Advocate General of the Army f (1895–1901), during the Spanish–American War (21 April – 13 August 1898) and Philippine–American War (4 February 1899 – 2 July 1902). The Lieber Code was the military law then applied for courts martial of American military personnel, and for litigation against the Filipino natives and against the Filipino revolutionaries fighting the U.S. occupation of the Philippine Islands; e.g. the unlawful concentration camps of Gen. J. Franklin Bell and war-crime trial of Littleton Waller.
U.S. Law of War Manual
In 2015, the United States Department of Defense published its Law of War Manual.[19][20] It was updated and revised in May 2016.[21] The Manual explicitly refers to the Lieber Code, and the Lieber Code's influence on the Law of War Manual is apparent throughout.[22]
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Source: "Lieber Code", Wikipedia, Wikimedia Foundation, (2023, January 29th), https://en.wikipedia.org/wiki/Lieber_Code.
Further Reading

Confederate States Army

Vicksburg campaign

Border states (American Civil War)

Army of the Tennessee

John Pope (military officer)

West Virginia in the American Civil War

Western theater of the American Civil War

Mississippi in the American Civil War

Texas in the American Civil War

North Carolina in the American Civil War

Partisan Ranger Act

Military history of African Americans in the American Civil War

Guerrilla warfare in the American Civil War

Ulysses S. Grant and the American Civil War

American Civil War prison camps
References
- ^ Francis Lieber, LL.D. and revised by a Board of Officers (1863). Instructions for the Government of the Armies of the United States in the Field (1 ed.). New York: D.Van Nostrand. Retrieved 23 August 2015 – via Internet Archive.
{{cite book}}
: CS1 maint: uses authors parameter (link) - ^ Carnahan, Burrus M. (2010). Lincoln on Trial: Southern Civilians and the Law of War. United States: The University Press of Kentucky. p. 30.
- ^ a b c Beard, Rick. The Lieber Codes The New York Times, 24 April 2013.
- ^ Article 43, Section II, General Orders No. 100, Instructions for the Government of Armies of the United States in the Field (24 IV 1863)
- ^ "Guerrilla Parties: Considered with Reference to the Laws and Usages of War". archive.org. 1862.
- ^ Vergerio, Claire (2022). "The Berlin and Hague Conferences". In Bukovanski, Mlada; Keene, Edward; Reus-Smit, Christian; Spanu, Maja (eds.). The Oxford Handbook of History and International Relations.
- ^ Kuo, Peggy (2002). "Prosecuting Crimes of Sexual Violence in an International Tribunal". Case Western Reserve Journal of International Law. 34: 306–307.
- ^ Vergerio, Claire (2022). "The Berlin and Hague Conferences". In Bukovanski, Mlada; Keene, Edward; Reus-Smit, Christian; Spanu, Maja (eds.). The Oxford Handbook of History and International Relations.
- ^ Article 60, Section III, Instructions for the Government of the Armies of the United States in the Field (1863).
- ^ Article 70, Section III, Instructions for the Government of the Armies of the United States in the Field (1863).
- ^ Francis Lieber; et al. (24 April 1863). "The Lieber Code of 1863". United States War Department. Archived from the original on 2001-04-07. Retrieved 10 March 2020.
- ^ "The Lieber Codes". The New York Times. April 24, 2013.
- ^ "Lieber Code". Oxford Public International Law. Retrieved November 9, 2017.
- ^ a b c "Lincoln's Code – Document Collection Center". documents.law.yale.edu.
- ^ See: Witt, Lincoln's Code, ch. 6–8.
- ^ Birtle, Andrew J. (April 1997). "The U.S. Army's Pacification of Marinduque, Philippine Islands, April 1900 – April 1901". The Journal of Military History. Society for Military History. 61 (2): 255–282. doi:10.2307/2953967. JSTOR 2953967.
- ^ Sherman, William T. (9 November 1864). "William T. Sherman, Special Field Orders No. 120, 9 November 1864".
- ^ United States. War Department. The War of the Rebellion: A Compilation of the Official Records of the Union and Confederate Armies. Series 2. 5. Washington, DC: Government Printing Office, 1899, pp. 671–682.
- ^ Office of General Counsel, Department of Defense (2015). Department of Defense Law War Manual (PDF). Washington, DC. pp. iii. Retrieved 14 April 2016.
- ^ Savage, Charlie (2016). "Pentagon Revamps Law of War Manual to Protect Journalists". The New York Times (published July 22, 2016). Retrieved July 23, 2016.
- ^ Office of General Counsel, Department of Defense (2015). Department of Defense Law War Manual. Washington, DC (published 2016). Retrieved 23 July 2016 – via DocumentCloud. or via U.S. Department of Defense
- ^ "Throwback Thursday: The Lieber Code". 23 July 2015.
Further reading
- Witt, John Fabian. Lincoln's Code: The Laws of War in American History. New York: Free Press, 2012.
External links

Categories
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- CS1: Julian–Gregorian uncertainty
- Codes of conduct
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- Law of war
- Legal history of the United States
- Military emancipation in the American Civil War
- Philippine–American War
- United States military law
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