I ISTRODCCTIOKh 1FHP STCDY THE LAWS OF LA.\-D WARFARE'
1963 WE the one hundredth anmwraary of the first codification of a body 01 humanitarian rules governing land warfare. This document was the Instmucttom Jm the Goternment of the Armies o! the l'nited States in the Fwld. General Orders KO 100 Aprll 24, 1863, papulsrly called the 'Lieber Code" aiter its author. Dr. Francis Lieber
The merage man on the street one hundred years later. upon hearing (he phrase, "law oi land n-ariare." usually has a comment somewhat to this effect: "There 16 no such thing Cnfortunately, during the Isst forty yeare or so. shade6 ai this sentiment have been shared by many xhalars, lecturers, and others interested in the field of internittional affairs and internationd law. .Among these people the reactions hare ranged from an opinion that the age of total war has arrived and. 86 a consequence, the traditional ueagea and customs have been n-iped out. to the idealistic opinion that n-81 has been autlsn-ed by international treaty and any eonaideration 01 the 10,n-s ai war 1s %RI mongering" and, therefore, is B subject to be shunned.'
Realistically speaking, neither of these extreme viewpoints is iruls ralid. Certamly total war iyith 811 01 it6 horrible attendant implications ir possible and >ts spectre haunts all of us. Honerer. mth the magnitude of destruction a hich IS possible with nuclear weapons, many sti&tegibts haye concluded that, 8s things presently stand, the East and the West h a e reached a situation of mutual nuclear deterrence.2 This has led to the theory that we face an em of conflicts somewhat short of tot81
* Thia ~irmle
UBI adapted fiom a thesis presented to The Judge .Adtocafe Gen-.Adroeate General'; Ichool or an) other 801 ernmental agency
** JAGC US lrmr Chief of Mhtaw Juatiee Omee of thr Stat Judie Idioeate, VI. .Army Area Command, Garneon. Frankfurt. Germany. BB. 1853.Unwenity oi Texas. LL.B. 1953. Unireraits ai Texas. admitted to pmotm m the Stare of Texai and before the United etatea Sumerne Caun and rnited States court of Mllltsry Appeal3
'See Kunr. The Chaotic Siafri 01 fhr Lava o/ W'w, 45 .Ax J IsT'~
L 37 (19511
'See generally Orcoan, Lrniirro Wm (18571; blrxrirr D. Tima. THB Usm-TAI, T ~ o r s r ~
(18381T A W 7- 1
international character. oi ahieh there can he
111 nature and In scape.
Itself, humanlt). dleratei the
It IS belicsed that in an! eonfli
n e must first look at the author hmmli and at 111s background
B THE LIFE OF FR.4.SCI.T LIEBER
Francis Lieber BE born in Berlin on March 18, 1800 These %\e!e rhe times when inspired by the French Rei-alutmn and the declaration ai the right8 of men, a conception of popular liberri and a Lrrong derire to attain IT had spread throughout Europe rnder the iron hand of thw autocratic government. the Prussian people became reiriie, and during
L L 453 '18131
helpless, alle51ate 7~iine~e tmn and ease tile trsnsititi?.
Ordeir S a 100 to see itliere ti
the early part of hie hie. Lieber's homeland beearlie R center of political react ion
In his early childhood Liebtr sitneiaed Sapoleon's entry into Beilin after Lhe victory of Jena. \\hen he w.s fifteen he enlisted in the Calberg regiment and set out to aid in the resiitance 10 Sapoleon then recently returned from his exile on Elba He fouplir at Ligny and under Bluchei at JTaterloo He iisi rermuslr wounded b! a French ball at the Battle of Samur. and as Root put it. "had the strange and vita1 didcipline of lying long on the battlefield in expectation of death. ' He >>as ewcu-nted to Liege and returned liome after B long con~slescence
Follon-mg the Xapoleonic ITarr Lieber beeam involved ~n B liberal pstriotx society and war imprisoned for four montlis. He -88 nineteen year8 of age at this time Because of his political nexs, he xes ex-cluded from dl German unneranies. except .Jena. whcrc he received hie Doctor ai Philosophy degree in 1820 He then had to leave Jena but Ipuraued iurtllei studlea et Halle and Dresden. At the age ai rwenry-one. lie and a group of athei young Grimanr. fired rirli enthuciaaiir by die resistance ai the Greeks to Turkish rule. iient TO Gieece m an una!ail-ing attempt to aid ~n the Greek War ai Independence.
From Greece. Lieber made hx way LO Italy ahere he became a tutor m the household of Barthold George Slebuhr, then Prussian Ambassador Siebuhr aided him m returning to Berlin Horre\er, his expedition to Greece convinced the police thaz. indeed Liebei was politi~ally dangerous Again he ~ 8 8
arrested. but Siebuhr interceded far him and obtained his release In Xap of 1826. Lieber left Germany and went to London. Of this point in Lieber's life. Bazter I:BEchis observation:
ration of an encyclopedia. became ICE editor. and m 1829 the pubhearion of the Encycloprdw Bniencnno began Through the many eonm.ers ,hat he made in this eapaen!. he became Proferroi of Histo>? and Political Economy at South Carolina Collegeg He remained there for txrenty.tno
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years but apparently enjoyed die opportunity of riairing his iriendr in Barton and 6eiv Yark nearly e\eiy summer Ir. lS5i Ire became Pra- his death m October 2. 18i2
saldiel Hmnilton Liebei lost an arm at Farr Donelaon, fighting far the Sarth. Guida Sarrnnn Lieber iiai an infnntrynisn ~n the Union Army Later as a Brigadier General this son WBS to become The .Judge Adro-cate General of rhe L-mted Stater Army during the Spanish-American \Tar 10
C THE 1YRITI.YG OF THE LIEBER CODE
By rhe end of 1862 the Cnil Kar had become one oi the p a m t eonflicri in hirtoiy Large armies composed for the most part of un-tiained xoIunteeIs and commanded often 11)- officers n ho lackedxy with the established customary rules ai war. had been putfield Xnny quelnonr concerning the iiglits and duties 01 fi illanderr BE vel1 as mdnidual soldieis liere constantly ansingtreatment of combatants and nancornbacanrs warruder these rmumstances. it became manifest that there w e a need ior 8 body of ii-ntten rules definmg rhe nglm and dutm ai commanders ai iell as those of the inhabitants of the aar-torn eountr! There were few treatises m rhe field of mtemationd law and rhe aver-age Union officer or enlisted man %%asxery unlikely to be acquainted wth
an) oi them l2
These uere the eircumJtancee that led President Lincoln to direct that B board be appornted to dralt a sei ai rules (or the bmon armies to w e m its struggle aith the
Secretary ai Kar Sranron by an order dated December 17, 1862. appointed a board "to propose amendments or changes in the rule6 and ii~tiele~ai war and a eade ai regulations far the garernment ai armies ~n the held ae authorized by the laws and usages of w81 ''1* The membirz of this five-man board \\ere Francis Lieber, LLD , General Hneh-cock [president ai the board). and Generals Cadaalader. Hartauff and llartmdale. The task of preparing the code of regulations xu given to Di. Lieber.18
Lieber, drairing upon his yesis of thought and study, quickly pre- pared B draft and preaented it to the other members of the board. After some additions snd deletions bg the officers on the board, Lieber then tiansmitted a revised draft to General Hnlleek an February 20, 1863, p e t tao monthe sitel the board was appointed.
President Lincoln approved the project and it was Issued as the Instruel*ons for the Goiernment of the Armies of the Cnated States in the Fteld. General Orders No IW. dated April 24, 186316
The example sei by the Cmred States in issuing the lnstructrons WBE
iollowed b? several European nations. Many ordinances oi. m&nuaIs. along the general linea ai the Lieber Code, were promulgated In 1871 the Government of the Setherlands isrued B manual entirled "Practical hlanual ai the Law of Kar ' It vas prepared by General den Beer Poortugsel, and the government, without directly sanctioning the manual, ordered that it should he wed 8% B textbook lor the mtmctian of officers The French Government follaaed suit ~n 1877." 81 did the Snir3 Government in 1878. Serbia in 1879. Spain in 1882, Portugal m 1890, and Itsly in 1896?8
"Thia Proleit oi COUTIP. !,a. u w d hy Lleber uith tbe bseklng of General Henry Hslleek, then General-m-Chiei oi the rnmn Armma and hlmeeli the authol of B work m the field 01 international lax
In this article the Lieber Code ~-111not be analyzed ~ ~ ~ o i t l i n g io rlic
order or arrangement ai the aiiginal General Order Xo 100 Inste
are articles which are date having an obvioue relation can Civil T ' i n
2 Baste Premwis
The Lieber Code rulfilled B tius1 purpose It aa- barh abook an the law of uar and B e t of ides io, field cmiiinaiidual funerion accounts for the fact that the Code ~acillal diffuseness and economy of language. Etimee hortatory. These charaetriiatics arfirat section oi The Code. aheie many ai The ~rtielei m e drswn ~n gen- I
GENERAL ORDER 100 era1 terms, 86 it they were establishing the premises for R logical system?'
Thur, Lieber sets out some basic principles 8s an introductlon to the theoretical bass of the law of war. "Publie uar" is definedof armed hostility between sorereign nations or governmethis then ie the implication that the Code was designed ior internaaional conflicts and not just for the Amencan Civil War It IF stated that m
R oivilized existence men lire together as nations, "whose canetituente bear, enpy, and euffer, adrance and retrograde together, ~n peace and m iwr From this it IS concluded that in w.r, rile ciriaen of B hostile country, as one of Ite constituents. is an enem?, subject to the hardships of war.24
Lieber states t h a there are many great nations "in dose intercourse ' and that "peace is their normal condition; war 1s the exception. ' He say8 that "the ultimate object of a11 modern nar ie a renened stme of peace," and that It IS better for humanity if wars me more rigorour. hecause "aharp iwrs m e brief."2'
War 13 not its own end. according to Lieber, but 1s the "means to obtain the great ends oi atate,2e or to...