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Lieber Code

The Lieber Code, formally designated as General Orders No. 100, consisted of instructions promulgated by United States President Abraham Lincoln on April 24, 1863, to regulate the conduct of Union armies during the American Civil War, addressing the treatment of enemy combatants, civilians, prisoners of war, and property in occupied territories.^[1]^[2] Drafted principally by Francis Lieber, a Prussian-born professor of history and political science 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.^[3]^[4] As the first systematic codification of the laws of war by a belligerent power in modern times, the Lieber Code outlined principles including the distinction between combatants and non-combatants, prohibitions on unnecessary suffering, protections for private property except in cases of military necessity, and humane handling of prisoners, while permitting severe measures against guerrillas and francs-tireurs to maintain discipline.^[1]^[5] It addressed novel issues arising from the Civil War, such as the status of emancipated slaves and the suppression of insurgency, reflecting Lieber's emphasis on balancing military exigency with restraint derived from customary international norms and philosophical reasoning.^[3]^[6] The code's enduring significance lies in its foundational role for international humanitarian law, serving as a model for subsequent treaties like the Hague Conventions of 1899 and 1907, and influencing the Geneva Conventions 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.^[1]^[6]^[5]

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.^[7] 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.^[7] 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.^[8] 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.^[9] The outbreak of hostilities in April 1861 rapidly exposed these gaps as Confederate forces increasingly employed guerrilla tactics, particularly in border states like Missouri and Kentucky, where irregular bands conducted ambushes, raids on supply lines, and attacks blending military and civilian roles.^[10] Such warfare, exemplified by groups under leaders like William Quantrill, 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.^[11] 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.^[12] Compounding these issues, President Abraham Lincoln's Preliminary Emancipation Proclamation 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.^[13] 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.^[14] 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 slavery itself.^[15]

Francis Lieber's Background and Selection

Francis Lieber was born in Berlin, Prussia, on March 18, 1798, into a merchant family.^[16] As a teenager, he enlisted in the Prussian Army to fight against Napoleon's forces, sustaining a severe wound at the Battle of Ligny in June 1815, shortly before Waterloo.^[16] After the war, Lieber pursued studies in law and classics at the University of Jena but faced imprisonment for his liberal political activities opposing absolutism.^[17] Exiled from Prussia, he briefly participated in the Greek War of Independence before immigrating to the United States in 1827, where he initially supported himself through translations and teaching.^[18] By 1835, he secured a professorship in history and political economy at South Carolina College, later moving to Columbia College in 1857 as professor of history and political science, establishing himself as a leading voice in American political thought with an emphasis on constitutionalism and limited government.^[19]^[18] 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 popular sovereignty and anti-absolutist principles derived from his experiences under Prussian rule, while advocating a disciplined nationalism that prioritized legal order over unchecked passion.^[18] Regarding slavery, Lieber intellectually opposed it as incompatible with modern liberty 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.^[20] 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.^[21] In late 1862, amid escalating irregular warfare and legal ambiguities, Lieber's expertise drew the attention of Union military leaders. General Henry Halleck, facing partisan challenges in the West, consulted Lieber on guerrilla operations and military commissions, leading to his advisory role under Judge Advocate General Joseph Holt in the War Department.^[22] 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.^[23] This selection underscored the administration's need for a scholar versed in balancing martial efficacy against civilized limits, informed by Lieber's European military scars and American liberal scholarship.^[17]

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.^[3]^[4] 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.^[4]^[24] 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.^[3]^[4] 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.^[3]^[4]^[2]

Fundamental Principles

Military Necessity and Humanity

The Lieber Code defines military necessity 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."^[2] 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.^[2] However, the Code explicitly curbs this necessity through the principle of humanity, as articulated in Article 16, which prohibits "cruelty—that is, the infliction of suffering for the sake of suffering or for revenge," along with maiming except in combat, torture to extract confessions, the use of poison, and wanton devastation of districts.^[2] 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.^[2] 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.^[1] Empirical observation of prolonged conflicts underscores this, where brutality fosters resentment and irregular resistance, extending hostilities rather than resolving them.^[25] 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.^[2] Lieber's formulation counters idealistic restraints by grounding limits in pragmatic causality: adherence to humanity sustains order among combatants and facilitates postwar reconciliation, whereas violations predictably amplify suffering through mutual escalation.^[26] Thus, the Code prioritizes ends-oriented action tempered by prohibitions on inherently counterproductive cruelties, aligning necessity with civilized warfare's empirical imperatives.^[6]

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.^[2] 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.^[27] Articles 57 through 82 further specify that lawful combatants must belong to organized, obedient forces, often uniformed and operating under command, distinguishing them from irregulars or those acting without such structure, who forfeit belligerent privileges.^[2] Noncombatants retain protections in person, property, and honor to the maximum extent compatible with military necessities, as military operations target only armed threats to preserve operational focus and limit devastation.^[2] 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.^[2] Retaliation, when permissible, requires deliberate inquiry and serves solely to deter violations, not as vengeance against unprotected civilians.^[2] This separation aligns with the Code's underlying logic that warfare aims at restoring peace 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.^[2] 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.^[2]

Martial Law and Occupation

The Lieber Code established martial law as the immediate consequence of military occupation, applying automatically to any enemy territory under Union control without requiring a formal proclamation. Article 1 defines occupation as imposing martial law, which serves as the direct effect of conquest, enabling the occupying army to exercise authority for public safety rather than punitive ends.^[2] 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.^[2] Article 3 specifies that martial law 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.^[28] Article 4 clarifies martial law as legitimate military authority aligned with war's laws and customs, distinguishing it from oppression by emphasizing enforcement through minimal force to achieve security for troops and civilians.^[2] Occupation under the Code constituted de facto control without implying annexation or permanent sovereignty transfer, focusing instead on provisional administration to facilitate pacification and minimize broader casualties from sustained disorder.^[2] The Code permitted requisitions of resources essential for army sustenance and operations but prohibited wanton destruction or seizures beyond military necessity, underscoring a causal logic that swift enforcement of order reduces overall violence by deterring resistance.^[2] 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.^[2] This structure positioned martial law as a pragmatic instrument for reimposing stability in rebel-held regions, balancing humanity with the imperatives of effective control.^[2]

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 levée en masse, 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.^[2] 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.^[2] 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.^[2] Articles 74–80 further mandated that POWs be regarded as prisoners of the capturing government, not private individuals, barring ransom demands and requiring confinement solely for security until formal exchange, parole, or war's end.^[2] 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 slavery or excessive toil; wholesome food, clothing, and shelter were required, with wounded POWs entitled to available medical care equivalent to that of the captor's troops.^[2] Escapes were not punishable beyond recapture and stricter custody, unless involving violence or conspiracy, which could warrant execution to deter organized rebellion; recaptured escapees rejoining their army faced no additional penalty beyond renewed detention.^[2] Violence to extract information was forbidden, reinforcing minimal standards to avoid reciprocal escalation.^[2] These rules emphasized reciprocity, with humane treatment—such as provision of necessities and prohibition 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.^[2] Retaliation was authorized only for proven enemy violations, like enslavement of Union captives, to compel adherence without descending into unchecked reprisals.^[2] During the American Civil War, the Code's framework provided Union forces with codified standards that, when applied, supported early prisoner exchanges and aimed to mitigate abuses by formalizing detention over vengeance, though enforcement varied amid operational pressures.^[29]^[1]

Handling of Slavery and Black Troops

The Lieber Code addressed slavery through Articles 42 and 43, declaring it invalid under the law of nature and nations, with no recognition of municipal laws permitting it.^[2] Fugitive slaves escaping from Confederate territory into Union lines were immediately entitled to freedom and the rights of freemen, prohibiting their return to bondage as it would constitute enslaving free persons.^[2] This provision aligned with prior Union policies on contraband of war but extended protection under international law, ensuring former owners held no belligerent claim via postliminy.^[2] The Code refrained from mandating forced emancipation within occupied Confederate areas, prioritizing military necessity over immediate abolition to prevent alienating white populations and risking increased resistance or desertions among Union forces.^[3] Slaves belonging to captured Confederates could enlist in Union armies, thereby securing freedom upon recruitment, but the instructions avoided broader confiscation decrees that might undermine operational pragmatism.^[1] 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 United States Colored Troops (USCT) as lawful combatants entitled to prisoner-of-war protections.^[2] Article 58 reinforced this by stating the law of nations made no distinction of color, mandating retaliation—specifically execution—against Confederates who enslaved or sold captured Union personnel, as the United States rejected enslavement as a reciprocal measure.^[2] 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.^[30]

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.^[2] 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.^[31] 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."^[2] 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, at the gallows," akin to dealing with robbers in the act.^[2] 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 army, forfeited belligerent rights.^[2] 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.^[32] Empirical patterns, including raids that blurred combatant-civilian lines and escalated atrocities—such as the August 21, 1863, assault on Lawrence, Kansas, by Confederate guerrillas under William Quantrill, resulting in 150–190 civilian deaths and widespread arson—illustrated how such methods extended conflict and eroded restraint.^[33] 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.^[2] This balance reflected Lieber's intent to deter asymmetric warfare's corrosive effects on organized armies while aligning with military necessity, 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.^[2] Private property receives explicit protection in occupied areas, subject only to military necessities such as seizure for provisioning troops or destruction to deny resources to the enemy. Article 37 mandates: "The United States acknowledge and protect, in hostile countries occupied by them, religion and morality; strictly private property; the persons of the inhabitants, including their honor and rights as neutrals," with exceptions for combatants, war criminals, or requisitions like taxation, forced loans, billeting, or appropriation of goods and labor for immediate army use. Receipts must be issued for seized private property, distinguishing lawful requisitions from unauthorized plunder, while public enemy property may be confiscated outright to support operations, its title held in abeyance pending peace. Articles 18–25 underscore this by prohibiting barbarous practices like enslavement or indiscriminate privation of noncombatants, framing war's hardships as directed against the hostile state rather than individuals, thereby limiting disruptions to private relations except as exigencies demand.^[2] 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.^[2]

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.^[2]^[1] 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.^[1] 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.^[34] The Code's enforcement contributed to a more disciplined approach, reducing ad hoc reprisals through structured court-martial proceedings for violations, as its provisions required trials for offenses like pillage or mistreatment of non-combatants, with Union records indicating hundreds of such cases prosecuted across theaters to uphold accountability.^[2] However, adherence faced difficulties in border states such as Missouri and Kentucky, where pervasive guerrilla warfare by Confederate irregulars—often operating without uniforms—prompted Union commanders to invoke the Code's clauses treating such fighters as outlaws subject to summary execution, yet the chaotic environment frequently led to inconsistent application and escalated local reprisals.^[32]^[11]

Notable Incidents and Legal Proceedings

The trial of Captain Henry Wirz, commandant of the Andersonville prison camp, in August–October 1865 exemplified the Lieber Code's application to adjudicate alleged violations of prisoner treatment standards. Wirz was charged with conspiracy, murder, and other offenses against Union prisoners, resulting in over 13,000 deaths due to malnutrition, disease, and abuse; the military commission convicted him on conspiracy and ten murder specifications, leading to his execution on November 10, 1865.^[35]^[36] 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 command responsibility over systemic excuses.^[37] The Fort Pillow incident on April 12, 1864, where Confederate forces under Nathan Bedford Forrest 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.^[38] Union leaders, including Generals Ulysses S. Grant and Benjamin Butler, 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.^[39] 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.^[40] 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 due process.^[37] Cases often exonerated actions proven as military necessity, like targeted reprisals against confirmed irregulars, 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.^[2] These proceedings demonstrated practical enforceability through tribunals that balanced necessity with restraint, though uneven application highlighted reliance on prosecutorial discretion.^[21]

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.^[6] 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.^[4] Confederate officials denounced the Code as hypocritical, particularly its provisions endorsing emancipation and arming Black troops, which they viewed as inciting servile insurrection; in response, the Confederate Congress passed a resolution on May 1, 1863, authorizing execution of captured Black soldiers and their officers as criminals rather than prisoners of war.^[41] 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 total war dynamics.^[42] 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 anarchy, as unchecked guerrillas prolonged conflict and eroded discipline; he emphasized that provisions like summary execution for spies or marauders were rooted in established customs of war, not innovation, to maintain order without descending into barbarism.^[43] 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.^[5] 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 internal conflict.^[1]

Scholarly Critiques and Defenses

Scholars have critiqued the Lieber Code for its heavy reliance on the doctrine of military necessity, 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 torture, assassination, poisoning wells, or wanton devastation, thus enabling commanders to invoke necessity for actions bordering on severity during irregular warfare.^[44] This emphasis, critics contend, facilitated incidents of disproportionate retaliation against guerrillas and civilians, as the Code's provisions on reprisals and collective responsibility subordinated individual protections to the goal of restoring order.^[45] Furthermore, some analyses highlight the Code's ambiguous stance on slavery-related practices, such as permitting the impressment 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.^[3] In contrast, defenders emphasize the Code's realistic calibration of restraint within the brutal context of 19th-century total mobilization, asserting that its definitions of necessity explicitly barred cruelty for its own sake—such as maiming or suffering inflicted for revenge—and thereby curbed potential descent into unrestrained barbarism.^[46] Analyses from military legal perspectives, including those examining its practical humanitarian lens, argue that the Code succeeded in channeling violence toward decisive ends, fostering disciplined conduct that avoided the moral and strategic pitfalls of absolute prohibitions, which could have prolonged conflicts by hampering effective operations.^[47] Empirical assessments of its implementation reveal a legacy of moderated excesses, where rules on non-combatant 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.^[48] 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 military efficacy and post-conflict legitimacy.^[46] 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.^[25] This perspective underscores the Code's role in establishing workable precedents, validated by its restraint on permissible violence relative to unregulated alternatives like partisan total war.

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.^[49] These principles, emphasizing military necessity 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.^[50] By World War II, 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 Hague and Geneva Conventions.^[51] FM 27-10 explicitly referenced military necessity as allowing measures "not forbidden by the law of war," mirroring Article 16 of the Code, which permitted actions essential to victory but barred cruelty or perfidy. The Code's enumeration of offenses—such as arson, murder, and rape as punishable even in wartime (Articles 55–58)—shaped the Uniform Code of Military Justice (UCMJ), enacted on May 5, 1950, by integrating common-law war crimes into Articles 77–134, including command responsibility for subordinates' violations, a concept rooted in Lieber's Article 71.^[52] This evolution extended court-martial jurisdiction to acts like mistreatment of prisoners, reflecting the Code's shift from ad hoc discipline to codified accountability.^[53] The 2015 Department of Defense Law of War Manual (updated December 2016) reaffirms the Code's foundational balance, stating in Section 2.5 that military necessity justifies force "to the degree necessary" while prohibiting excess, directly echoing Lieber's Article 16 dictum against "unnecessary severity."^[54] In Iraq (2003–2011) and Afghanistan (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 counterinsurgency without eroding force protection.^[46]

Contributions to International Law

The Lieber Code provided an empirical foundation for codifying customary laws of war through demonstrated state practice during the American Civil War, emphasizing military necessity alongside restraints on unnecessary suffering, which informed subsequent international instruments without serving as their direct progenitor.^[30] 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.^[21] This influence manifested in the Brussels Declaration of 1874, 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.^[55]^[56] 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 humanitarianism in favor of context-bound rules derived from wartime realities.^[57] Subsequent Hague Conventions of 1899 and 1907 further adopted the Code's core distinctions and necessity doctrine, integrating them into binding regulations on land warfare, such as protections for non-combatants and limits on reprisals, thereby elevating U.S. practice into multilateral norms.^[1]^[30] These conventions borrowed heavily from Lieber's framework for command responsibility and treatment of occupied territories, validating the Code's role as a bridge from unilateral instruction to customary international law.^[3] 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.^[6]^[58] 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.^[59]

Relevance in Subsequent Conflicts

During the Philippine–American War (1899–1902), 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 1899 by the U.S. War Department, explicitly referencing its principles to regulate operations in occupied territory and distinguish combatants from civilians.^[60] Despite pressures from asymmetric warfare, the Code's prohibitions on torture—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 Theodore Roosevelt in 1902 publicly condemned such methods as violations of civilized warfare standards rooted in the Code.^[30]^[61] 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.^[62] 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.^[63]^[64] 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 recruitment and civilian backlash compared to unchecked reprisals.^[65]^[66]

References

[1]
The “Lieber Code” – the First Modern Codification of the Laws of War
Apr 24, 2018 · On April 24, 1863, U.S. President Abraham Lincoln issued “General Orders No. 100: Instructions for the Government of the Armies of the United ...
[2]
General Orders No. 100 : The Lieber Code - Avalon Project
INSTRUCTIONS FOR THE GOVERNMENT OF ARMIES OF THE UNITED STATES IN THE FIELD. Prepared by Francis Lieber, promulgated as General Orders No. 100 by President ...
[3]
[PDF] The Lieber Code: A Historical Analysis of the Context and Drafting of ...
Francis Lieber lobbied the Lincoln administration to update the United States laws of war. On April 24, 1863,. President Lincoln issued General Orders No. 100 ...
[4]
The Lieber Code - Essential Civil War Curriculum
Though a Prussian by birth, Francis Lieber (1798 – 1872) was uniquely qualified to write a summary of the international laws and usages of war for use during ...
[5]
[PDF] The first modern codification of the Law of War: Francis Lieber and ...
These orders which were immedi- ately recognized and appreciated by the principal lawyers of the time, had a great influence on the future of the law of nations ...
[6]
[PDF] From the Civil War-Era Lieber Code to the Geneva Conventions
The “Lieber. Code,” also known as General Orders No. 100, was a handbook for Union soldiers, and became the bedrock of professional soldiers' actions toward ...
[7]
Laws of War: Founding Fathers - HistoryNet
Sep 12, 2017 · Hugo Grotius and Emmerich de Vattel laid the intellectual groundwork for the modern concept of lawful warfare.
[8]
[PDF] 2d Session. $ ( No. 84. RULES AND ARTICLES OF WAR. - GovInfo
13 The article here proposed is more comprehensive than article 59 of the act of April 10, 1806, as it is made to embrace civil employe's connected with the ...
[9]
[PDF] When a Soldier Breaks the Law - Scholarly Commons
Two important exceptions should be noted however: in times of peace no person shall be tried by court-martial for murder or for rape committed within the ...
[10]
Guerrilla Warfare | American Battlefield Trust
Jun 3, 2013 · The guerrilla war, as waged by both Confederate guerrillas and Unionists in the South, gathered in intensity between 1861 and 1865 and had a ...Missing: challenges | Show results with:challenges
[11]
https://oxfordre.com/americanhistory/display/10.1093/acrefore/9780199329175.001.0001/acrefore-9780199329175-e-926
[12]
Hard War in Virginia during the Civil War
While politics were a concern behind the Union's initial “mild-war” strategy, so were legal complications provoked by the war. Confederate officials saw the ...
[13]
Black Soldiers in the U.S. Military During the Civil War
Oct 4, 2023 · As a result, on July 17, 1862, Congress passed the Second Confiscation and Militia Act, freeing slaves who had masters in the Confederate Army.
[14]
The Emancipation Proclamation | National Archives
Jan 28, 2022 · Moreover, the Proclamation announced the acceptance of black men into the Union Army and Navy, enabling the liberated to become liberators.
[15]
African-American Soldiers During the Civil War - Library of Congress
In 1862, President Lincoln's Emancipation Proclamation opened the door for African Americans to enlist in the Union Army. Although many had wanted to join the ...
[16]
[PDF] Lieber, Francis (1798-1872), Author and Professor.
Lieber, Francis (1798-1872), author and professor. Born in Berlin, Lieber served in the. Prussian Army until he was wounded near Waterloo in 1815. He earned ...
[17]
Biographies | Lieber Collection | Judge Advocate General's Legal ...
Francis (Franz) Lieber (1798–1872), a German–American jurist best known for his codification of the laws of war at the behest of the Lincoln administration.
[18]
HET: Francis Lieber - The History of Economic Thought Website
German-born American economist, professor of history and political economy at the University of South Carolina in 1835, later Columbia.
[19]
1857 | Department of History - Columbia University
Francis Lieber (1798-1872) was appointed Professor of History and Political Science in 1857. Born in Berlin, Lieber served in the Prussian army during the ...
[20]
Francis Lieber on Institutional Liberty, Secession, and the Modern ...
Despite owning two domestic slaves, Lieber rejected the principle of slavery and privately scorned the emerging proslavery ideology of his students and the ...Missing: pre- | Show results with:pre-
[21]
[PDF] Francis Lieber and the Modern Law of War
Jan 13, 2014 · In the rest of this Review I will explore the nature of the Lieber. Code in greater detail as well as its influence on the conduct of the Civil ...
[22]
THE LAW(?) OF THE LINCOLN ASSASSINATION
In 1862, at Halleck's urging, Professor Francis Lieber completed a study of the problem that Halleck confronted in Missouri—how the law treated so-called “ ...
[23]
Lincoln's Code: The Laws of War in American His - jstor
Joseph Holt, for the post. Lieber lobbied to be allowed to write a compilation of the customary rules of warfare and in 1862 was appointed to a board of ...
[24]
The Lieber Code - by Donald C. Cartmell
Apr 24, 2025 · Once these were established, an editorial committee of Union generals (E.A. Hitchcock, Geo. Cadwalader, G.L. Hartsuff, and J.H. Martindale) ...
[25]
[PDF] A different sense of humanity: occupation in Francis Lieber's Code
37 Some critique the Code's expansive treatment of military necessity and the 'extreme views of the rights of the military occupant over the inhabitants of ...
[26]
New York, 1863: The Lieber Code. Humanity in Warfare
The Lieber Code is widely regarded as the founding document of the laws of war in the way we know them today. The text, promulgated as General Orders No. 100 ...
[27]
Lieber Code, 1863 - Article 57 - IHL Treaties
Art. 57. So soon as a man is armed by a sovereign government and takes the soldier's oath of fidelity, he is a belligerent; his killing, wounding, or other ...Missing: civilians | Show results with:civilians
[28]
Lieber Code, 1863 - Article 3 - IHL Treaties
Art. 3. Martial Law in a hostile country consists in the suspension, by the occupying military authority, of the criminal and civil law, and of the domestic ...
[29]
History and Legal Status of Prisoners of War - National Park Service
Oct 26, 2022 · The 1863 "Lieber Code" on treatment of prisoners accorded basic rights to the POWs and designated a POW to be the "prisoner of the government ...
[30]
Lieber Code - Oxford Public International Law
The text was endorsed by a committee of four generals and then promulgated, in May 1863, by the Union President, Abraham Lincoln, as 'General Orders, No. 100: ...
[31]
Lieber Code, 1863 - Article 82 - IHL Treaties
Art. 82. Men, or squads of men, who commit hostilities, whether by fighting, or inroads for destruction or plunder, or by raids of any kind, without commission.
[32]
Occupation Resistance, War-Rebels, and the Lieber Code
Dec 3, 2021 · Lieber claimed the war-rebel “has been universally treated with the utmost rigor of the military law.” But neither Grotius or Vattel mention the ...<|separator|>
[33]
Quantrill's Raid on Lawrence | Civil War on the Western Border
At dawn on August 21, 1863, Quantrill and his guerrillas rode into Lawrence, where they burned much of the town and killed between 160 and 190 men and boys.
[34]
D. H. Dilbeck: The Lieber Code and Sherman's March to the Sea
Feb 5, 2020 · In today's post, Dilbeck explores how effective Lieber's code for the Union Army really was, paying special attention to Sherman's infamous “March to the Sea.”Missing: Atlanta campaign
[35]
The Wirz Trial: a mock trial examining the laws of war
Nov 2, 2018 · The commander of the prison, Captain Henry Wirz, was arrested in May 1865 and was charged with violating the laws of war. In the fall of 1865 a ...
[36]
The Andersonville (Henry Wirz) Trial (1865): An Account
The Commission found Wirz guilty on charge 1 (conspiracy) and on 10 of the 13 specifications of murder in charge 2. In a decision signed by the Commission's ...Missing: Lieber Code
[37]
[PDF] The Laws of War - The Lieber Codes - National Park Service
Listed below are specific laws of war in the Lieber Codes that address treatment of prisoners of war. 56. A prisoner of war is subject to no punishment for ...
[38]
Atrocities, Retribution, and Laws (Chapter 12)
Oct 11, 2019 · Lieber's code labeled retaliation “the sternest feature of war.” It justified retaliation ... massacre at Fort Pillow, Tennessee. There, ...
[39]
The Lieber Codes - The New York Times Web Archive
Apr 24, 2013 · In Lieber's calculus, ends could not be separated from means; the ends were the essential determinants of a military action's justification.
[40]
Fort Pillow - mrlincolnandfreedom.org
Cabinet officers Seward, Chase, Stanton, and Welles argued that Confederate troops equal in number to the Union troops massacred should be held as hostages.Missing: Lieber Code
[41]
Confederate Response to Emancipation Proclamation and ...
May 1, 2025 · The United States began actively recruiting black men for military service in September 1862, after United States president Abraham Lincoln ...August 25, 1862: With the South Carolina Sea Islands ... - FacebookEmancipation Proclamation and Freedom's Eve - FacebookMore results from www.facebook.comMissing: dilemmas | Show results with:dilemmas
[42]
Analysis: General Orders No. 100: Instructions for the Government of ...
Drafted by jurist Francis Lieber and authorized by President Abraham Lincoln, it sets forth guidelines aimed at mitigating the brutality of warfare. The orders ...Missing: endorsement | Show results with:endorsement
[43]
General Orders No. 100 - FRANCIS LIEBER
The forceful arrest of Vallandigham for agitation against the Union cause was justified by General Orders No. 100. Picture. Portrait of General Ethan Allen ...
[44]
"Lincoln's Code: The Laws of War in American History," by John ...
Jun 9, 2013 · Witt describes Lieber's views as “a compelling but potentially ferocious framework for the laws of war.” Outside of torture, virtually all ...
[45]
Francis Lieber and the Modern Law of War by Paul Finkelman :: SSRN
Jan 24, 2014 · This essay offers a critical analysis of John Witt's book on the law of war, Lincoln's Code. The essay applauds much of Witt's book, but criticizes his work.Missing: critique | Show results with:critique
[46]
Is the Lieber Code Humanitarian?
Jan 7, 2021 · The Lieber Code has much to offer humanity. The Code sought to civilize armed conflict at a time when rules and restraint were very much needed.
[47]
https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID4414363_code2091508.pdf?abstractid=4414363
[48]
[PDF] Utilitarian vs. Humanitarian: The Battle Over the Law of War
Jul 1, 2002 · Lieber was a man who understood the warrior's utilitarian perspective and goals. But he also was touched personally by the war. His eldest son ...
[49]
[PDF] Instructions for the Government of Armies of the United States ... - Loc
All enemies in regular war are divided into two general classes-that is to say, into combatants and noncombatants, or unarmed citizens of the hostile government ...
[50]
The DOD Law of War Manual: What is it Good For? - Just Security
Jul 28, 2015 · By 1914, Geneva and Hague Convention development had dated Lieber's work, so the Secretary of War approved a new “Rules of Land Warfare” manual ...Missing: doctrine | Show results with:doctrine
[51]
[PDF] US Army Doctrine and Belligerent Occupation - DTIC
May 26, 2004 · first was the creation of two field manuals, FM 27-10, the Law of Land Warfare, and FM 27-5, Military. Government, which are discussed in ...<|separator|>
[52]
The Army Lawyer 2025 Issue 2
Sep 4, 2025 · 5 Authored by legal scholar Francis Lieber, the “Lieber Code” incorporated common law crimes under the Articles of War for the first time ...
[53]
[PDF] Animating the U.S. War Crimes Act
Nov 16, 2021 · The War Crimes Act underwent a major revision following the revela- tions of custodial abuses being committed at Abu Ghraib prison in Iraq and.
[54]
[PDF] Department of Defense Law of War Manual - DoD OGC
May 31, 2016 · The Department of Defense Law of War Manual (June 2015, updated May 2016) incorporates the changes described in the attachment. The original ...
[55]
[PDF] The Lieber Code and the American Civil War - IRL @ UMSL
American Civil War (1861 - 1865). ▫ Code for soldiers on how they should behave. ▫ Humane treatment for prisoners of war and civilians. ▫ Any slave who ...
[56]
Lincoln, Lieber and the Laws of War: The Origins and Limits of ... - jstor
The roots of the modern law of war lie in the 1860s. Developments in this decade began in 1862 when Henry Dunant published Un Souvenir de Solferino,' which ...
[57]
[PDF] The Brussels Peace Conference of 1874 and the Modern Laws of ...
Aug 4, 2017 · preferred the Lieber Code over the Brussels Declaration, which he found to err too far on the side of protecting humanitarian interests at ...
[58]
[PDF] The 1863 Lieber Code, and the 1864 Geneva Convention
that in 1983 Hartigan said of the Code: 'This document was to have a profound effect on the international law of land warfare. The.
[59]
[PDF] Back in the Game: International Humanitarian Lawmaking by States
The story of the Lieber Code highlights State-made laws of war as being key to the effective regulation of State conduct. Indeed, arguably more than any ...
[60]
Lieber Code Facts for Kids
Sep 6, 2025 · Philippine–American War. A shorter version of the Lieber Code was published in 1899. Lieber's son, Guido Norman Lieber, was the main legal ...
[61]
Laws of War | The Code Maker - HistoryNet
May 22, 2018 · In 1862, with the Civil War underway, Francis Lieber got the War Department to let him draft a new set of rules for the conflict.Missing: process | Show results with:process
[62]
[PDF] Treatment of "Battlefield Detainees" in the War on Terrorism
Apr 11, 2002 · Later conventions adopted the Lieber Code for international application and clarified the rules, generally expanding their coverage and ...
[63]
[PDF] Lawfulness of Interrogation Techniques under the Geneva ...
Sep 8, 2004 · Allegations of abuse of Iraqi prisoners by U.S. soldiers at the Abu Ghraib prison in Iraq have ... The Lieber Code,5 adopted by the Union Army to ...
[64]
[PDF] š of Detainee Operations in the Post-9/11 World - USAWC Press
Aug 1, 2005 · ”56 As early as the US Civil War, the Lieber Code, published in 1863 as ... Human Rights Watch, “The Road to Abu Ghraib,” Introduction. 42 ...
[65]
Laws of Yesterday's Wars Symposium - Reading the Lieber Code as ...
Mar 17, 2023 · Lieber Code's legacy was Lieber's implicit assessment that the law itself could be used as strategic lawfare.
[66]
[PDF] Parameters Autumn 2025 - USAWC Press
Sep 16, 2025 · The Lieber Code (General Orders No. 100) championed avoiding attacks ... to 21st century hybrid threats and hybrid warfare. The ...