The Lieber Code and the Regulation of Civil War in International Law

APO AKANDE* & LAWRENCE HILL-CAWTHORNE**

COLUMBIA JOURNAL OF TRANSNATIONAL LAW (2015)

http://jtl.columbia.edu/wp-content/uploads/sites/4/2015/06/Akande_HillCawthorne_53-CJTL-638.pdf  

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http://www.slaw.ca/2013/07/08/the-lieber-code/

The Lieber Code

by Lyonette Louis-Jacques

April 24, 2013, marked the 150^th anniversary of the publication of the Instructions for the Government of Armies of the United States in the Field, a U.S. government document also known as the “Lieber Code”. Francis Lieber of the War Department, Adjutant General’s Office, prepared the Code at the request of President Abraham Lincoln. The President issued the Code on April 24, 1863, as General Orders, No. 100. Even after a century and a half, this document continues to be relevant today. Justice O’Connor cited it in the plurality opinion in Hamdi et al. v. Rumsfeld, 542 U.S. 507, 519 (2004), for the proposition that that “captured rebels” would be treated “as prisoners of war”. Some scholars consider the Lieber Code the first major codification of the law of war.

The influence of the Lieber Code was not confined to the conflict which occasioned it [American Civil War]. It was generally adopted by the German Government for the conduct of hostilities in the Franco-Prussian War. It exerted a great influence on the drafters of the Hague Convention of 1899 Respecting the Laws of War on Land, which, in turn, was revised during the Hague Regulations of 1907, and served as a starting point for the more recent Geneva Conventions on the subject. (Shepard, at 162).

A U.S. Department of State press release on the April 23, 2013, Lieber Code Sesquicentennial Celebration at the National Archives describes the Lieber Code as containing:

ground-breaking standards for the conduct of war addressing: the rights of prisoners of war, the inviolability of civilians, the means and methods of warfare, the limits of military necessity, sexual violence, cultural property, the administration of territories under occupation, and military jurisdiction.

The Lieber Code is divided into ten sections:

• Section I. Martial Law – Military jurisdiction – Military necessity – Retaliation.
• Section II. Public and private property of the enemy – Protection of persons, and especially of women, of religion, the arts and sciences – Punishment of crimes against the inhabitants of hostile countries.
• Section III. Deserters – Prisoners of war – Hostages – Booty on the battlefield.
• Section IV. Partisans – Armed enemies not belonging to the hostile army –
  Scouts- Armed prowlers – War-rebels.
• Section V. Safe-conduct – Spies – War-traitors – Captured messengers – Abuse of the flag of truce.
• Section VI. Exchange of prisoners – Flags of truce – Flags of protection.
• Section VII. Parole.
• Section VIII. Armistice – Capitulation.
• Section IX. Assassination.
• Section X. Insurrection – Civil War – Rebellion.