April 24, 2013, marked the 150th 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.
Lieber Code: Text
General Orders No. 100: The Lieber Code: Instructions for the Government of Armies of the United States in the Field. Via The Avalon Project, Yale Law Library; in HTML.
Instructions for the Government of Armies of the United States in the Field (Washington, D.C.: U.S. Government Printing Office, 1863). Via the HathiTrust Digital Library, in PDF. Click on “Full View” for text.
Instructions for the Government of Armies of the United States in the Field (Lieber Code). 24 April 1863. Via the International Committee of the Red Cross (ICRC), in HTML.
Lieber, Francis. “General Order No. 100, Adjutant-General's Office, Instructions for the Government of Armies of the United States in the Field,” in 2 The Miscellaneous Writings of Francis Lieber 245-274 (Daniel C. Gilman ed., Philadelphia: J.B. Lippincott Co., 1881). Via the HathiTrust Digital Library.
Friedman, Leon ed.1 The Law of War: A Documentary History 158–186 (New York: Random House, 1972).
Schindler, Dietrich & Jiri Toman eds. The Laws of Armed Conflicts: A Collection of Conventions, Resolutions and Other Documents 3-20 (3d rev. ed., 2004).
United States. War Department. The War of the Rebellion: A Compilation of the Official Records of the Union and Confederate Armies: Series 2: Vol. 5 671-682 (Washington, DC: Government Printing Office, 1899). Abridged version of the Lieber Code. House Doc. No. 311, 55th Cong., 3d Sess. Sudoc # W45.5:118. Via the HathiTrust Digital Library.
Lieber Code: Books & Book Chapters
Hartigan, Richard Shelly, “Francis Lieber and the Law of War,” in Military Rules, Regulations & the Code of War: Francis Lieber and the Certification of Conflict 1-29 (New Brunswick, NJ: Transaction Publishers, 2011). Google Preview.
Originally published under the title: Lieber’s Code and the Law of War (Chicago: Precedent, 1983). Contents: Guerrilla parties considered with reference to the laws and usages of war — General orders no. 100 — Selected correspondence and documents.
Includes the text of General Orders, No. 100 (Lieber Code) at pages 45-71.
Röben, Betsy. Johann Caspar Bluntschli, Francis Lieber und das moderne Völkerrecht 1861−1881 (Baden-Baden: Nomos-Verlagsgesellschaft, 2003)(Studien zur Geschichte des Völkerrechts;Bd.4).
Root, Elihu. “Francis Lieber: Presidential Address at the Seventh Annual Meeting of the American Society of International Law, Washington, April 24, 1913,” in Addresses on International Subjects 89-103 (Robert Bacon & James Brown Scott eds., Cambridge: Havard University Press, 1916). On the 50th anniversary of the Lieber Code. Via the HathiTrust Digital Library.
Witt, John Fabian. Lincoln’s Code: The Laws of War in American History (New York: Free Press/Simon & Schuster, 2012). Google Preview.
Includes the text of the Instructions for the Government of Armies of the United States in the Field (Lieber Code) at pages 375-394.
Book Review. Posner, Eric. “ The Lincoln Laws: Should we thank the Great Emancipator for codifying the law of war—or curse him?” (Slate, August 28, 2012).
Book Review, Schuessler, Jennifer. “Trying to Set Legal Rules for Brutal War” (New York Times, October 10, 2012).
Lieber Code: Journal & Newspaper Articles
Baxter, R.R. “The First Modern Codification of the Law of War – Francis Lieber and General Orders No. 100,” 3 International Review of the Red Cross, No.25, April 1963, at171-221.
_________. “The First Modern Codification of the Law of War – Francis Lieber and General Orders No. 100 – II,” 3 International Review of the Red Cross, No.26, May 1963, at 234-250.
Beard, Rick. “The Lieber Codes,” New York Times, Opinionator, April 24, 2013.
Carnahan, Burrus M., “Lincoln, Lieber and the Laws of War: The Origins and Limits of the Principle of Military Necessity,” 92 American Journal of International Law 213-231 (1998).
Childress, James F. “Francis Lieber’s Interpretation of the Laws of War: General Orders No. 100 in the Context of His Life and Thought,” 21 American Journal of Jurisprudence 34-70 (1976).
Davis, George B. “Doctor Francis Lieber’s Instructions for the Government of Armies in the Field,” 1 American Journal of International Law 13-25 (1907).
Doty, Grant R. “The United States and the Development of the Laws of Land Warfare,” 156 Military Law Review 224 -255 (1998). PDF via JDSupra and the Library of Congress.
Feimster, Crystal N. “Rape and Justice in the Civil War,” New York Times, Opinionator, April 25, 2013.
“[T]he Lieber Code made it possible for women to seek justice in military courts and eventually established the modern understanding of rape as a war crime.”
Garner, James G. “General Order 100 Revisited,” 27 Military Law Review 1-48 (1965). PDF via the Library of Congress.
Giladi, Rotem. “A Different Sense of Humanity: Occupation in Francis Lieber’s Code,” 94 International Review of the Red Cross, No.885, Spring 2012, at 81-116..
Haimbaugh, George D., Jr. “Introduction to Panel II: Humanitarian Law: The Lincoln-Lieber Initiative,” 13 Georgia Journal of International and Comparative Law 245-251 (1983 ).
Discusses the significance and influence of the Lieber Code.
“Lieber Code,” 42 Prologue: The Journal of the National Archives, No.1 (Spring 2010), at 23-24.
Meron, Theodor, “Francis Lieber’s Code and Principles of Humanity,” 36 Columbia Journal of Transnational Law 269-281 (1997).
Nys, Ernest. “Francis Lieber – His Life and His Work, Part I” 5 American Journal of International Law 84-117 (1911).
_________. “Francis Lieber – His Life and His Work, Part II” 5 American Journal of International Law 355-393 (1911).
Root, Elihu. “Francis Lieber,” 7 American Journal of International Law 453-469 (1913).
Appendix at pages 466-469 includes an article-by-article comparison, a “Memorandum Showing the Relation between General Orders No. 00 [Lieber Code] and the Hague Convention with Respect to the Laws and Customs of War on Land” prepared by Major General George B. Davis. Article published on the 50th anniversary of the Lieber Code.
Shepard, William S., “One Hundredth Anniversary of the Lieber Code,” 21 Military Law Review 157-162 (1963). PDF via the Library of Congress
Mentions that Field Manual 27-10, The Law of Land Warfare, was the successor to the Lieber Code.
Lieber Code: Organizations & Websites
LieberCode (Blog, Jens David Ohlin, Professor, Cornell Law School)
Lieber Society on the Law of gArmed Conflict (American Society of International Law)