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Lieber Code
Lieber Code
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The jurist Franz Lieber, LL.D., modernized the military law of the 1806 Articles of War into the Lieber Code (General Orders No. 100, April 24, 1863) for the Union Army to legitimately prosecute the civil war (1861–1865) begun by the Confederate States of America.

The Lieber Code (General Orders No. 100, April 24, 1863) 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 in the American Civil War (April 12, 1861 – May 26, 1865) against the Confederate States of America (February 8, 1861 – May 9, 1865).[1]

The General Orders No. 100: Instructions for the Government of the Armies of the United States in the Field (Lieber Code) were written by Franz Lieber, a German lawyer, political philosopher, and combat veteran of the Napoleonic Wars.

History

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Background

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At military age, the jurist Francis Lieber soldiered and fought in two wars, first for Prussia in the Napoleonic Wars (18 May 1803 – 20 November 1815) and then in the Greek War of Independence (21 February 1821 – 12 September 1829) from the Ottoman Empire (1299–1922). In his later career, Lieber was an academic at the College of South Carolina, in the southern region of United States of America. Although not personally an abolitionist, Lieber opposed slavery in principle and in practice because he had witnessed the brutalities of black chattel slavery in the South, from which he departed for New York City in 1857.[2] In 1860, Professor 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]

During that time, Lieber had three sons who fought in the American Civil War (April 12, 1861 – May 26, 1865): one in the Confederate Army, who was killed at the Battle of Eltham's Landing (May 7, 1862), and two in the Union Army. Later in 1862, in St. Louis, Missouri, while searching for the Union-soldier son wounded at the Battle of Fort Donelson (February 11–16, 1862), Lieber asked the help of his professional acquaintance Major General Henry W. Halleck, who had been a lawyer before the Civil War and was the author of International Law, or, Rules Regulating the Intercourse of States in Peace and War (1861), a book of political philosophy that emphasized legal correspondence between the casus belli and the purpose of the war.[3]

Gen. Henry W. Halleck commissioned the jurist Franz Lieber, LL.D., to modernize the military law of the 1806 Articles of War into General Orders No. 100 (1863), the Lieber Code, for the Union Army to fight the guerrilla warfare of the Confederacy during the American Civil War (1861–1865).
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In fighting the Confederate Army, guerrillas, and civilian collaborators of the Confederacy, Union Army soldiers and officers faced ethical dilemmas of command responsibility concerning their summary execution in situ, per military custom, because the 1806 Articles of War did not address the management and disposition of prisoners of war and irregular fighters; nor the management and safe disposition of escaped black slaves – who were not to be repatriated to the Confederacy, per the Act Prohibiting the Return of Slaves (1862).[4]

To resolve the lack of military authority in the 1806 Articles of War, Commanding General of the Union Army Halleck commissioned Professor Lieber to write military laws specific to the modern warfare of the American Civil War. For the Union Army's management and disposal of irregular fighters (guerrillas, spies, saboteurs, et al.), Lieber wrote the tract of military law Guerilla Parties Considered with Reference to the Laws and Usages of War (1862), which disallowed a soldier's POW-status to Confederate guerrillas and irregular fighters with three functional disqualifications: (i) guerrillas do not wear the army uniform of a belligerent party to the war; (ii) guerrillas have no formal chain of command, like a regular army unit; and (iii) guerrillas cannot take prisoners, as could an army unit.[5]

At the end of 1862, General Halleck and War Secretary Stanton commissioned Lieber to revise the military law of the 1806 Articles of War to include the practical considerations of military necessity and the humanitarian needs of civilian populations under military occupation. The editorial-revision committee, Major General Ethan A. Hitchcock and Major General George Cadwalader, Major General George L. Hartsuff and Brigadier General John Henry Martindale, requested from Lieber comprehensive military laws to govern the Union Army's prosecution of the Civil War. Gen. Halleck edited Lieber's military law to concur with the Emancipation Proclamation (1 January 1863), and, on April 24, 1863, President Lincoln promulgated General Orders No. 100, Instructions for the Government of the Armies of the United States in the Field, the Lieber Code.[3]

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For the Union Army's prosecution of the American Civil War, General Order No. 100 (April 24, 1863) concerns the practical particulars of martial law, military jurisdiction, and the treatment of Confederate irregular fighters, such as spies, deserters, and prisoners of war. In the field practice of military justice, the unit commander held authority for any prosecution under the Lieber Code, which command authority included the summary execution of Confederate prisoners of war and war-criminal soldiers of the Union Army.[6] In the context of the American Civil War, the Lieber Code explains the concepts of military necessity and humanitarian needs in articles 14, 15, and 16 of Section I:

  1. 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.
  2. 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.
  3. 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.

In the late 19th century, the Lieber Code was the first modern codification of both customary international law and the law of war of Europe, and later was a basis for the Hague Convention of 1907, which restated and codified the practical particulars of that U.S. military law for application to international war among the signatory countries.[7]

Ethical warfare

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As the modernization of the 1806 Articles of War (An Act for Establishing Rules and Articles for the Government of the Armies of the United States), the Lieber Code defines and describes what is a state of civil 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 under the military occupation of the Union Army, and forbids the 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 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][12]

Black prisoners of war

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The Lieber Code military law concorded with the Emancipation Proclamation (1 January 1863) and prohibited racial discrimination against black soldiers of the Union Army, specifically the Confederate Army denying them the rights and privileges of prisoners of war.[13] Those stipulations of U.S. military law specifically addressed the Confederate government's proclamation that the Confederate Army would treat captured black soldiers of the Union Army as escaped slaves, and not as prisoners of war, subject either to summary execution or to re-enslavement in the Confederacy; likewise, the white officers commanding the captured black soldiers would be denied prisoner-of-war status and would be arrested, tried, and condemned as common criminals for helping slaves escape human bondage.[14][15]

Hard measures

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The Prussian military theoretician Carl von Clausewitz in uniform

Regarding a successful military occupation, the Lieber Code proposed a reciprocal relationship between the U.S. military authority and the Confederate civilian population, whose co-operation with the military authority would ensure considerations and good treatment for the civilian populace; that against guerrilla warfare and armed resistance to martial law the Union Army would subject the insubordinate enemy civilians to imprisonment and death.[16]

Moreover, to defend against the Confederate Army's violations of the laws of war by way of irregular fighters, the Lieber Code allowed retaliation by musketry against Confederate POWs, and allowed the summary execution of captured enemy civilians (spies, saboteurs, francs-tireurs, guerrillas) caught attacking the Union Army and the United States.[17]

In the 19th century, the Lieber Code legalized limited circumstances for retaliation against enemies for acts such as giving no quarter, reasoning "a reckless enemy ... leaves to his opponent no other means of securing himself against the repetition of barbarous outrage." (article 27) "Retaliation shall only be resorted to after careful inquiry into the real occurrence, and the character of the misdeeds that may demand retribution."(article 28)

However, retribution is limited: "Unjust or inconsiderate retaliation removes the belligerents farther and farther from the mitigating rules of regular war, and by rapid steps leads them nearer to the internecine wars of savages."(article 28)

As he believed war's ultimate goal is to bring peace, Lieber preferred for short wars fought and won with decisive warfare, as proposed in the strategy and tactics of the Prussian military science of Carl von Clausewitz. To that end, the Lieber Code legitimized and justified aggressive war to expand the operational range of the Union Army’s prosecution of the civil war to conquer the Confederacy and free the slaves.[18][19]

Occupation of the Confederacy

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Gen. Sherman at Federal Fort No. 7, after the Atlanta Campaign, September 1864.

For the conquest and military occupation of the Confederate States of America (February 8, 1861 – May 9, 1865), General William Tecumseh Sherman based his Special Field Orders No. 120 (November 9, 1864) upon General Orders No. 100 (April 24, 1863) for 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."[20]

Moreover, the Lieber Code (General Orders No. 100, April 24, 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.[21]

Legacy

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International law

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In the late 19th century and in the early 20th century, the parties to the Hague Conventions of 1899 and 1907 used the Lieber Code (General Orders No. 100, April 24, 1863) as a basis for their legislation of the international law of war and the codification (definition and description) of what is a war crime and of what is a crime against humanity. In the mid 20th century, in the aftermath of the Second World War (1 September 1939 – 2 September 1945), at the war-crime Nuremberg Trials (20 November 1945 – 1 October 1946) and at the Tokyo Trials (29 April 1946 – 12 November 1948) the jurists determined that, by the year 1939, most governments in the world knew of the existence the law of war, agreed in Switzerland, and thus most governments knew the legal responsibilities of the belligerent parties, of neutral countries, and of the refugees from the war.[22]

Philippine–American War

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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).[23] Lieber's son, Guido Norman Lieber, was the Judge Advocate General of the Army (1895–1901), during the Spanish–American War (April 21 – August 13, 1898) and Philippine–American War (February 4, 1899 – July 2, 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 General J. Franklin Bell and war-crime trial of Littleton Waller.

U.S. Law of War Manual

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In 2015, the United States Department of Defense published its Law of War Manual.[24][25] It was updated and revised in July 2023.[26] The Manual explicitly refers to the Lieber Code, and the Lieber Code's influence on the Law of War Manual is apparent throughout.[27]

See also

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References

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Further reading

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Revisions and contributorsEdit on WikipediaRead on Wikipedia
from Grokipedia
The Lieber Code, formally designated as General Orders No. 100, consisted of instructions promulgated by United States President on April 24, 1863, to regulate the conduct of Union armies during the , addressing the treatment of enemy combatants, civilians, prisoners of war, and property in occupied territories. Drafted principally by , a Prussian-born professor of history and at Columbia College, the code was commissioned by Union General Henry W. Halleck to provide clear guidelines amid the irregular warfare and ethical dilemmas of the conflict. As the first systematic codification of the laws of war by a power in modern times, the Lieber Code outlined principles including the distinction between combatants and non-combatants, prohibitions on unnecessary , protections for except in cases of , and humane handling of prisoners, while permitting severe measures against guerrillas and to maintain discipline. It addressed novel issues arising from the Civil War, such as the status of emancipated slaves and the suppression of , reflecting Lieber's emphasis on balancing military exigency with restraint derived from customary international norms and philosophical reasoning. The code's enduring significance lies in its foundational role for , serving as a model for subsequent treaties like the Hague Conventions of and , and influencing the by establishing precedents for proportionality in warfare and the protection of civilians, despite criticisms that its provisions on retaliation and necessity allowed broader latitude for harsh actions than later instruments.

Historical Context and Drafting

Antebellum Influences and Civil War Challenges

Prior to the American Civil War, the intellectual foundations of military conduct in the United States drew heavily from European just war theories, particularly the works of Hugo Grotius, whose 1625 treatise De Jure Belli ac Pacis articulated principles of natural law governing warfare, including distinctions between combatants and non-combatants and restraints on violence. These ideas, alongside those of Emmerich de Vattel, influenced the framers of American military law, embedding concepts of proportionality and humanity into early U.S. practice. The U.S. Articles of War, enacted by Congress on April 10, 1806, codified 101 rules primarily focused on internal discipline, mutiny prevention, and basic protections for non-combatants bringing supplies, but they offered limited guidance on occupation, irregular forces, or the conduct of total war. These antebellum provisions, largely unchanged from British precedents, proved inadequate for the unprecedented scale and domestic nature of the Civil War, where conventional lines blurred into widespread civilian involvement and partisan actions. The outbreak of hostilities in April 1861 rapidly exposed these gaps as Confederate forces increasingly employed guerrilla tactics, particularly in border states like and , where irregular bands conducted ambushes, raids on supply lines, and attacks blending military and civilian roles. Such warfare, exemplified by groups under leaders like , escalated after mid-1861, involving atrocities such as the murder of Union prisoners and sympathizers, which Union commanders faced without clear legal frameworks for retaliation or distinguishing lawful partisans from criminals. This irregularity created command dilemmas, as traditional rules presumed interstate conflicts rather than intra-national strife, prompting Union generals to improvise responses that risked violating international norms or provoking further escalation. Compounding these issues, President Abraham Lincoln's Preliminary of September 22, 1862, authorized the enlistment of black troops into Union forces, ultimately recruiting approximately 180,000 African American soldiers by war's end. Confederate authorities responded by declaring captured black soldiers to be slaves subject to re-enslavement or execution, and their white officers to death as inciters of servile insurrection, heightening fears of reprisals that could undermine Union morale and incite mutiny among white troops reluctant to fight alongside or for emancipated blacks. These exigencies demanded formalized guidelines to clarify the status of former slaves in arms, regulate responses to Confederate threats, and maintain discipline amid a war that increasingly targeted Southern institutions like itself.

Francis Lieber's Background and Selection

Francis Lieber was born in , , on March 18, 1798, into a merchant family. As a teenager, he enlisted in the to fight against Napoleon's forces, sustaining a severe wound at the in June 1815, shortly before Waterloo. After the war, Lieber pursued studies in law and classics at the but faced imprisonment for his liberal political activities opposing absolutism. Exiled from , he briefly participated in the Greek War of Independence before immigrating to the in 1827, where he initially supported himself through translations and teaching. By 1835, he secured a professorship in history and at College, later moving to Columbia College in 1857 as professor of history and , establishing himself as a leading voice in American political thought with an emphasis on and . Lieber's pre-Civil War writings reflected a blend of nationalist fervor, ethical restraint in conflict, and pragmatic views on social institutions. In works like On Civil Liberty and Self-Government (1853), he championed and anti-absolutist principles derived from his experiences under Prussian rule, while advocating a disciplined that prioritized legal order over unchecked passion. Regarding , Lieber intellectually opposed it as incompatible with modern but pragmatically accepted its existence in the American South as a entrenched property relation, cautioning against immediate abolition without legal safeguards to avoid chaos; he even owned domestic slaves during his South Carolina tenure, though he privately criticized emerging pro-slavery ideologies as irrational defenses of a dying institution. On war ethics, his essays emphasized the necessity of controlled force to achieve legitimate ends, rejecting vengeance or barbarism in favor of rules that preserved humanity amid military exigencies, influences drawn from Clausewitz and historical precedents. In late 1862, amid escalating and legal ambiguities, Lieber's expertise drew the attention of Union military leaders. Henry Halleck, facing partisan challenges in the West, consulted Lieber on guerrilla operations and military commissions, leading to his advisory role under in the War Department. Lieber proactively proposed codifying war rules, leveraging his reputation for pragmatic jurisprudence that integrated realist assessments of combat necessities with restraints on excess, making him ideal for the task; he was thus appointed to a three-officer board in December 1862 to draft instructions for armies in the field. This selection underscored the administration's need for a versed in balancing efficacy against civilized limits, informed by Lieber's European military scars and American liberal scholarship.

Development and Approval Process

In late 1862, Francis Lieber prepared an initial rough draft of the code following consultations with General Henry W. Halleck, incorporating principles from international customs of war and prior military writings to address challenges like guerrilla activities and prisoner treatment. The War Department then formed a review board in December 1862, consisting of Lieber and four Union generals—Ethan A. Hitchcock as chair, George Cadwalader, George L. Hartsuff, and John H. Martindale—to propose amendments to the Articles of War and develop comprehensive instructions for armies in the field. Lieber completed a more formal draft by February 1863, which the board revised modestly to enhance enforceability, including clauses permitting limited retaliation—such as against the re-enslavement of captured Black Union troops—while prohibiting vengeful excesses to support Union aims of disciplined warfare, emancipation enforcement, and strategic restraint. The finalized document, endorsed by President Abraham Lincoln, was issued as General Orders No. 100 on April 24, 1863, and distributed to Union armies as binding guidance, rapidly integrating into command practices to impose responsibility for adherence amid ongoing Civil War operations.

Fundamental Principles

Military Necessity and Humanity

The Lieber Code defines in Article 14 as "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." This principle justifies acts of destruction essential to victory, such as targeting enemy arsenals, factories, or even crops and provisions when required, provided they align with established norms of civilized warfare. However, the Code explicitly curbs this necessity through the principle of humanity, as articulated in Article 16, which prohibits "—that is, the infliction of for the sake of or for ," along with maiming except in , to extract confessions, the use of , and wanton devastation of districts. This restraint reflects a recognition that military exigency must yield to inherent limits on permissible violence, excluding perfidy or acts causing superfluous injury beyond what advances the war's objective. The Code thereby establishes a philosophical equilibrium: force remains instrumental toward decisive ends, but unchecked excess invites moral and practical degradation, as excesses like torture or reprisal against non-combatants erode the very discipline needed for effective operations. Empirical observation of prolonged conflicts underscores this, where brutality fosters resentment and irregular resistance, extending hostilities rather than resolving them. Underlying this framework is the Code's assertion in Article 29 that "the more vigorously wars are pursued the better it is for humanity. Sharp wars are brief," positing that humane constraints enable swift, conclusive campaigns by preserving troop morale and forestalling cycles of retaliation that indefinite warfare entails. Lieber's formulation counters idealistic restraints by grounding limits in pragmatic causality: adherence to humanity sustains order among combatants and facilitates postwar , whereas violations predictably amplify suffering through mutual escalation. Thus, the Code prioritizes ends-oriented action tempered by prohibitions on inherently counterproductive cruelties, aligning necessity with civilized warfare's empirical imperatives.

Distinctions Between Combatants and Civilians

The Lieber Code categorically divides enemies in regular warfare into combatants and noncombatants, defining the latter as unarmed citizens of the hostile government who enjoy immunity from direct attack unless they engage in hostilities. Combatants consist of individuals formally armed by a sovereign authority after swearing fidelity, rendering their wartime acts—such as killing or wounding enemies—legitimate rather than criminal. Articles 57 through 82 further specify that lawful combatants must belong to organized, obedient forces, often uniformed and operating under command, distinguishing them from or those acting without such structure, who forfeit belligerent privileges. Noncombatants retain protections in person, property, and honor to the maximum extent compatible with necessities, as operations target only armed threats to preserve operational focus and limit devastation. The Code explicitly prohibits pillage, reprisals, or reprisal-like measures against innocents, classifying acts such as robbery or wanton violence toward inhabitants as capital offenses enforceable by commanders. Retaliation, when permissible, requires deliberate inquiry and serves solely to deter violations, not as vengeance against unprotected civilians. This separation aligns with the Code's underlying logic that warfare aims at restoring through decisive action against belligerents, noting that "sharp wars are brief" and that failing to uphold distinctions erodes civilized restraints, empirically fostering cycles of indiscriminate retaliation that prolong conflict and collapse societal order by blurring permissible targets. By concentrating force on verifiable threats—uniformed, oath-bound troops—the framework minimizes extraneous harm, enabling belligerents to maintain discipline and avoid the total war escalation observed when lines dissolve into guerrilla ambiguity or civilian involvement without formal status.

Martial Law and Occupation

The Lieber Code established as the immediate consequence of , applying automatically to any enemy territory under Union control without requiring a formal . Article 1 defines occupation as imposing , which serves as the direct effect of , enabling the occupying army to exercise authority for public safety rather than punitive ends. This framework prioritized the restoration of order through temporary military governance, suspending civil processes only to the extent necessary for securing the occupying force and protecting inhabitants unless their actions warranted deprivation of rights. Article 3 specifies that entails the suspension of criminal, civil, and domestic laws by the occupying authority, substituting military rule where required by necessity, while allowing commanders to maintain select civil functions if compatible with military objectives. Article 4 clarifies as legitimate military authority aligned with war's laws and customs, distinguishing it from by emphasizing enforcement through minimal force to achieve for troops and civilians. Occupation under the Code constituted control without implying or permanent transfer, focusing instead on provisional administration to facilitate pacification and minimize broader casualties from sustained disorder. The Code permitted requisitions of resources essential for army sustenance and operations but prohibited wanton destruction or seizures beyond , underscoring a causal logic that swift of order reduces overall violence by deterring resistance. Article 5 advocated graduated severity, with less stringent measures in fully conquered areas and harsher actions in zones of active or anticipated hostilities, reflecting a realist approach that authorized firm countermeasures against persistent opposition to avert protracted insurgencies and their attendant human costs. This structure positioned as a pragmatic instrument for reimposing stability in rebel-held regions, balancing humanity with the imperatives of effective control.

Key Provisions

Treatment of Prisoners of War

The Lieber Code, in Articles 49–56, defined prisoners of war (POWs) as captured public enemies, including armed belligerents, those in a , and unarmed individuals attached to the hostile army, such as sutlers or reporters without safe-conduct passes, entitling them to detention rather than execution or enslavement upon capture. These provisions excluded spies, who lacked POW status and faced potential execution, and deserters from the captor's forces serving the enemy, who could be tried and punished to preserve military cohesion. Article 56 explicitly prohibited punishing POWs for their status as enemies or inflicting suffering, disgrace, or barbarity, including through cruel confinement, starvation, mutilation, or post-surrender wounding of disabled combatants, with such acts deemed punishable by death under military law. Articles 74–80 further mandated that POWs be regarded as prisoners of the capturing government, not private individuals, barring demands and requiring confinement solely for security until formal exchange, , or war's end. Officers and privates could perform labor for the captor's benefit, limited to camp maintenance or government work scaled by rank, but not forced into or excessive toil; wholesome , , and shelter were required, with wounded POWs entitled to available care equivalent to that of the captor's troops. Escapes were not punishable beyond recapture and stricter custody, unless involving or , which could warrant execution to deter organized rebellion; recaptured escapees rejoining their army faced no additional penalty beyond renewed detention. to extract information was forbidden, reinforcing minimal standards to avoid reciprocal escalation. These rules emphasized reciprocity, with humane treatment—such as provision of necessities and of indignities—intended to incentivize mutual compliance and facilitate exchanges on a rank-for-rank, number-for-number basis, as outlined in related provisions on cartels and paroles. Retaliation was authorized only for proven enemy violations, like enslavement of Union captives, to compel adherence without descending into unchecked reprisals. During the , the Code's framework provided Union forces with codified standards that, when applied, supported early exchanges and aimed to mitigate abuses by formalizing detention over vengeance, though enforcement varied amid operational pressures.

Handling of Slavery and Black Troops

The Lieber Code addressed through Articles and 43, declaring it invalid under the law of nature and nations, with no recognition of municipal laws permitting it. Fugitive slaves escaping from Confederate territory into Union lines were immediately entitled to and the of freemen, prohibiting their return to bondage as it would constitute enslaving free persons. This provision aligned with prior Union policies on of war but extended protection under , ensuring former owners held no belligerent claim via postliminy. The Code refrained from mandating forced within occupied Confederate areas, prioritizing over immediate abolition to prevent alienating white populations and risking increased resistance or desertions among Union forces. Slaves belonging to captured Confederates could enlist in Union armies, thereby securing freedom upon recruitment, but the instructions avoided broader decrees that might undermine operational . Regarding black troops, Article 57 affirmed that no belligerent could deny public enemy status to properly organized soldiers based on class, color, or condition, thereby recognizing (USCT) as lawful combatants entitled to prisoner-of-war protections. Article 58 reinforced this by stating made no distinction of color, mandating retaliation—specifically execution—against Confederates who enslaved or sold captured Union personnel, as the rejected enslavement as a reciprocal measure. These rules countered Confederate policies executing black soldiers and their officers, promoting integrated Union forces as a strategic necessity for victory without ideological impositions that could fracture alliances.

Measures Against Guerrilla Warfare

Articles 82–85 of the Lieber Code addressed irregular combatants, termed "bushwhackers" or guerrillas, who operated without formal military commission, regular organization, or continuous wartime participation, instead reverting intermittently to civilian pursuits while launching surprise attacks on isolated soldiers, couriers, or foraging parties. These fighters, by divesting themselves of soldierly appearance and exploiting civilian guise for asymmetric strikes, were denied public enemy status and prisoner-of-war protections, rendering them liable to treatment as highway robbers or pirates upon capture under arms. Article 82 explicitly stated that such intermitting hostiles "are not public enemies, and thereby entitled to be considered as prisoners of war, but their acts make them liable to be treated as highway robbers or pirates." The provisions justified summary execution without trial for those caught in hostile acts, as articulated in Article 84, which authorized commanders to hang armed prowlers "by the neck, ," akin to dealing with robbers in the act. Article 83 emphasized that the irregularity of their operations increased vulnerability to immediate justice, while Article 85 clarified that even bands of such irregulars, unless integrated into a recognized hostile , forfeited . This framework stemmed from the recognition that guerrilla tactics evaded conventional battle, prolonged hostilities by scattering Union forces into policing roles, and undermined troop discipline through constant low-level threats, as observed in Civil War border regions where irregulars facilitated plunder and civilian-targeted violence. Empirical patterns, including raids that blurred combatant-civilian lines and escalated atrocities—such as the August 21, 1863, assault on , by Confederate guerrillas under , resulting in 150–190 civilian deaths and widespread arson—illustrated how such methods extended conflict and eroded restraint. To mitigate risks of arbitrary application against non-combatants, the Code mandated evidentiary thresholds: penalties applied only to those proven under arms in hostile acts, excluding mere sympathizers or unarmed locals, thereby preserving distinctions essential to lawful warfare. This balance reflected Lieber's intent to deter asymmetric warfare's corrosive effects on organized armies while aligning with , prioritizing swift suppression to hasten war's end over extended leniency toward disruptors.

Conduct in Occupied Enemy Territory

The Lieber Code establishes that territory occupied by Union forces falls under martial law, whereby the invading army assumes temporary control to maintain order and security without claiming sovereignty or altering permanent political structures. Article 1 specifies: "A place, district, or country occupied by an enemy stands, in consequence of the occupation, under the Martial Law of the invading or occupying army, whether any uprising occurs, or not." This framework suspends local civil laws and institutions, substituting military authority to administer justice, suppress resistance, and ensure compliance, with violations punishable by military commissions. Private property receives explicit protection in occupied areas, subject only to necessities such as for provisioning troops or destruction to deny resources to the enemy. Article 37 mandates: "The acknowledge and protect, in hostile countries occupied by them, and morality; strictly ; the persons of the inhabitants, including their honor and as neutrals," with exceptions for combatants, criminals, or requisitions like taxation, forced loans, billeting, or appropriation of goods and labor for immediate use. Receipts must be issued for seized , distinguishing lawful requisitions from unauthorized plunder, while public enemy property may be confiscated outright to support operations, its title held in pending peace. Articles 18–25 underscore this by prohibiting barbarous practices like enslavement or indiscriminate privation of noncombatants, framing 's hardships as directed against the hostile state rather than individuals, thereby limiting disruptions to private relations except as exigencies demand. To enforce order, occupying commanders hold authority to demand oaths of temporary allegiance from local magistrates and civil officers, expelling or executing those who refuse, while requiring strict obedience from all inhabitants under threat of death. Article 26 states: "Commanding generals may cause the magistrates and civil officers... to take the oath of temporary allegiance or an oath of fidelity to their own victorious government or rulers, and they may expel everyone who declines to do so. But whether they do so or not, the people and their civil officers owe strict obedience to them as long as they hold sway over the district or country, at the peril of their lives." Crimes against the occupier, including aid to rebels, are tried via proclamation or military tribunals, with Article 37 extending protections to neutrals and unarmed persons absent such offenses. Vengeance is banned, as acts of cruelty or pillage undermine discipline and prolong hostilities; instead, measured reprisals require prior inquiry, prioritizing subsistence confiscations for the army over looting, which invites disorder and alienates potential shifts in local loyalty toward the occupier.

Application and Enforcement

During the American Civil War

General Orders No. 100, known as the Lieber Code, was issued by President Abraham Lincoln on April 24, 1863, and promptly disseminated to Union armies operating in both the Eastern and Western theaters, providing a standardized framework for military conduct amid the war's intensifying phases. In the Western Theater, it influenced operations during Major General Ulysses S. Grant's Vicksburg Campaign, which culminated in the siege from May 18 to July 4, 1863, by delineating permissible actions against fortifications and civilian property under principles of military necessity while prohibiting wanton destruction. Similarly, during Major General William T. Sherman's Atlanta Campaign from May 7 to September 2, 1864, the Code authorized foraging and limited seizures to sustain advancing forces, justifying tactical measures like rail disruptions as essential to weakening Confederate logistics without endorsing indiscriminate reprisals. The Code's enforcement contributed to a more disciplined approach, reducing ad hoc reprisals through structured proceedings for violations, as its provisions required trials for offenses like or mistreatment of non-combatants, with Union records indicating hundreds of such cases prosecuted across theaters to uphold . However, adherence faced difficulties in border states such as and , where pervasive by Confederate irregulars—often operating without uniforms—prompted Union commanders to invoke the Code's clauses treating such fighters as outlaws subject to , yet the chaotic environment frequently led to inconsistent application and escalated local reprisals. The trial of Captain , commandant of the camp, in August–October 1865 exemplified the Lieber Code's application to adjudicate alleged violations of treatment standards. Wirz was charged with , , and other offenses against Union s, resulting in over 13,000 deaths due to , disease, and abuse; the military commission convicted him on and ten specifications, leading to his execution on November 10, 1865. The proceedings invoked the Code's provisions on humane treatment and reciprocity, as Confederate conditions were argued to mirror Union prison failures, though the commission emphasized over systemic excuses. The Fort Pillow incident on April 12, 1864, where Confederate forces under killed approximately 200 surrendering Union troops—many Black soldiers—prompted Union threats of retaliation under the Lieber Code's allowance for reciprocal measures against atrocities. Union leaders, including Generals and , proposed holding equivalent numbers of Confederate prisoners as hostages and executing them if similar acts recurred, citing the Code's stipulation that retaliation was a "sternest feature of war" to deter barbarity. Though no mass executions followed, the episode underscored the Code's role in justifying potential reprisals while constraining indiscriminate punishment, with Lincoln ultimately moderating responses to avoid escalation. The Lieber Code informed over 100 military commissions and court-martials during and after the Civil War, enforcing accountability for unauthorized executions and other breaches, such as summary killings of guerrillas without . Cases often exonerated actions proven as , like targeted reprisals against confirmed , but convicted officers for excesses, as in instances of unapproved civilian executions in occupied territories, affirming the Code's emphasis on commander oversight and proportionality. These proceedings demonstrated practical enforceability through tribunals that balanced necessity with restraint, though uneven application highlighted reliance on .

Criticisms and Debates

Contemporary Reactions

Union military leaders, including General Henry W. Halleck, who chaired the committee that refined Francis Lieber's draft, endorsed General Orders No. 100 for providing clear, authoritative guidelines on wartime conduct amid the chaos of guerrilla warfare and irregular hostilities. Halleck's prior distribution of 5,000 copies of Lieber's 1861 pamphlet on guerrilla warfare demonstrated his appreciation for such codifications, and the Code's promulgation on April 24, 1863, extended this by standardizing rules for the entire Union Army, reducing ambiguity in field operations. Confederate officials denounced the Code as hypocritical, particularly its provisions endorsing and arming troops, which they viewed as inciting servile insurrection; in response, the Confederate Congress passed a resolution on May 1, 1863, authorizing execution of captured soldiers and their officers as criminals rather than prisoners of . Despite public condemnations, Confederate practice tacitly mirrored aspects of the Code, such as in handling prisoners and partisans, begrudgingly adopting its principles to regulate their own forces amid escalating dynamics. Francis Lieber defended the Code's stern measures against charges of excessive severity, arguing in correspondence and lectures that civil wars demanded rigorous enforcement to prevent , as unchecked guerrillas prolonged conflict and eroded discipline; he emphasized that provisions like for spies or marauders were rooted in established customs of , not innovation, to maintain order without descending into barbarism. European observers, including Prussian military thinkers influenced by Lieber's earlier works, regarded the Code as a civilized advancement, praising its attempt to humanize hostilities through written rules at a time when restraint was urgently needed. The Code's immediate impact evidenced pragmatic acceptance among Union troops, with its distribution to armies correlating to sustained discipline; official records show no widespread mutinies or refusals tied to its rules, suggesting soldiers internalized its directives as necessary for operational clarity in a protracted .

Scholarly Critiques and Defenses

Scholars have critiqued the Lieber Code for its heavy reliance on the doctrine of , which prioritized operational imperatives over stringent humanitarian restraints, thereby permitting measures that could justify excessive force. John Fabian Witt, in his 2012 analysis, describes the framework as "compelling but potentially ferocious," arguing that it allowed virtually all forms of violence short of , , poisoning wells, or wanton devastation, thus enabling commanders to invoke necessity for actions bordering on severity during . This emphasis, critics contend, facilitated incidents of disproportionate retaliation against guerrillas and civilians, as the Code's provisions on reprisals and subordinated individual protections to the goal of restoring order. Furthermore, some analyses highlight the Code's ambiguous stance on slavery-related practices, such as permitting the of labor from occupied territories without fully eradicating ties to the institution, reflecting Lieber's pragmatic concessions to wartime exigencies rather than unequivocal abolitionist principles. In contrast, defenders emphasize the Code's realistic calibration of restraint within the brutal of 19th-century total mobilization, asserting that its definitions of necessity explicitly barred for its own sake—such as maiming or inflicted for —and thereby curbed potential descent into unrestrained barbarism. Analyses from military legal perspectives, including those examining its practical humanitarian lens, argue that the Code succeeded in channeling toward decisive ends, fostering disciplined conduct that avoided the and strategic pitfalls of absolute prohibitions, which could have prolonged conflicts by hampering effective operations. Empirical assessments of its reveal a legacy of moderated excesses, where rules on protections and POW treatment imposed causal limits on atrocities, contributing to Union forces' ability to achieve victory without eroding internal cohesion or inviting reciprocal savagery. These defenses rebut anachronistic impositions of contemporary humanitarian absolutism, which often stem from academic traditions favoring deontological protections over consequentialist realism; such critiques overlook how the Code's necessity doctrine empirically aligned incentives for compliance, shortening wars by preserving efficacy and post-conflict legitimacy. Proponents, drawing on Lieber's own philosophical grounding in civilization's progress through rational limits, maintain that unattainable ideals of universal mercy would have rendered rules inert, whereas the Code's balanced realism proved causally effective in humanizing conflict amid existential stakes. This perspective underscores the Code's role in establishing workable precedents, validated by its restraint on permissible violence relative to unregulated alternatives like partisan .

Long-Term Influence

On American Military Doctrine

The Lieber Code, issued as General Orders No. 100 on April 24, 1863, established core principles that directly informed later U.S. military instructions, including its republication in 1898 as Instructions for the Government of Armies of the United States in the Field during the Spanish-American War, where it guided Union Army conduct without substantive revision. These principles, emphasizing tempered by humanity, were incorporated into early 20th-century U.S. Army compilations such as the 1914 Rules of Land Warfare, which drew from the Code's framework on belligerent rights and restraints. By , the Code's influence persisted in U.S. field manuals like FM 27-10 (The Law of Land Warfare, first published in 1940 and revised through 1976), which translated Lieber's concepts of permissible force and prohibitions on unnecessary suffering into doctrine binding Army operations, alongside and . FM 27-10 explicitly referenced as allowing measures "not forbidden by the ," mirroring Article 16 of the Code, which permitted actions essential to victory but barred cruelty or . The Code's enumeration of offenses—such as , , and as punishable even in wartime (Articles 55–58)—shaped the (UCMJ), enacted on May 5, 1950, by integrating common-law war crimes into Articles 77–134, including for subordinates' violations, a concept rooted in Lieber's Article 71. This evolution extended jurisdiction to acts like mistreatment of prisoners, reflecting the Code's shift from discipline to codified accountability. The 2015 Department of Defense Manual (updated December 2016) reaffirms the Code's foundational balance, stating in Section 2.5 that justifies force "to the degree necessary" while prohibiting excess, directly echoing Lieber's Article 16 dictum against "unnecessary severity." In (2003–2011) and (2001–2021), U.S. forces applied these principles amid insurgent warfare, with doctrine permitting responses to irregular threats—such as targeted strikes on combatants—provided they adhered to distinction and proportionality, as operational reviews confirmed over 500,000 detainee handlings under necessity-based rules without systematic Code violations. This doctrinal lineage endures for U.S. all-volunteer forces confronting non-state actors, where the Code's pragmatic realism—prioritizing mission accomplishment over absolute restraint—counters interpretations that impose peacetime evidentiary standards on combat, as evidenced by FM 27-10's retention through post-9/11 conflicts to enable effective without eroding .

Contributions to International Law

The Lieber Code provided an empirical foundation for codifying customary laws of war through demonstrated state practice during the , emphasizing alongside restraints on unnecessary suffering, which informed subsequent international instruments without serving as their direct . Unlike aspirational declarations, its provisions prioritized practical enforceability, as evidenced by Union Army application, offering a realist template for balancing combat effectiveness with humane limits over abstract ideals. This influence manifested in the Brussels Declaration of , which compiled 56 articles drawing explicit inspiration from the Code's structure and content on belligerent conduct, including distinctions between lawful combatants and civilians, though the Declaration itself failed to gain ratifications and thus remained non-binding. The Code's principles of necessity—permitting destruction essential to military operations while prohibiting wanton acts—echoed in these drafts, reflecting Lieber's rejection of absolutist in favor of context-bound rules derived from wartime realities. Subsequent Hague Conventions of and further adopted the Code's core distinctions and necessity doctrine, integrating them into binding regulations on , such as protections for non-combatants and limits on reprisals, thereby elevating U.S. practice into multilateral norms. These conventions borrowed heavily from Lieber's framework for and treatment of occupied territories, validating the Code's role as a bridge from unilateral instruction to . The 1949 Geneva Conventions marked a departure by expanding individual protections, particularly in the Third Convention's protocols on prisoners of war, yet retained the Code's foundational emphasis on humane treatment contingent on reciprocity and operational feasibility, illustrating evolution from Lieber's pragmatic baseline rather than wholesale replacement. Overall, the Code's legacy lies in modeling state-driven codification that privileged verifiable application over unenforceable utopianism, influencing treaty drafters through proven efficacy in large-scale conflict.

Relevance in Subsequent Conflicts

During the (–1902), the Lieber Code informed U.S. military conduct against Filipino insurgents, who employed guerrilla tactics akin to those during the Civil War. A condensed version of the Code was issued in by the U.S. War Department, explicitly referencing its principles to regulate operations in occupied territory and distinguish combatants from civilians. Despite pressures from , the Code's prohibitions on —such as Article 16's ban on "cruelty" and "infliction of suffering for the sake of suffering"—guided efforts to curb practices like the water cure, though violations occurred and sparked internal debates; President in 1902 publicly condemned such methods as violations of civilized warfare standards rooted in the Code. In later conflicts like the Vietnam War and the Iraq War, the Lieber Code was invoked in discussions of detainee treatment to reaffirm baseline humane standards amid asymmetric threats. During Vietnam, its emphasis on retaliation only for verified enemy violations (e.g., Articles 59–60) underscored limits on reprisals against prisoners, influencing U.S. adherence to emerging international norms despite guerrilla atrocities. In Iraq, particularly post-Abu Ghraib revelations in 2004, the Code was cited in legal analyses to highlight historical U.S. precedents against intentional suffering or degradation of captives, reinforcing that military necessity does not permit cruelty even against irregular fighters. Recent scholarship from institutions like the U.S. Military Academy at West Point affirms the Code's enduring relevance to hybrid threats, where state and non-state actors blend conventional and irregular tactics. Analyses emphasize its framework for calibrated restraint—such as protecting non-combatants while permitting retaliation—to mitigate escalation and long-term blowback, with empirical reviews of post-1945 conflicts indicating that adherence to such rules correlates with reduced insurgent and civilian backlash compared to unchecked reprisals.

References

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