I have posted a number articles on prisoners of war and captivity studies recently. I thought it might be useful to post the relevant sections of the Lieber Code (General Order 100) on the treatment of prisoners of war. The Lieber Code was promulgated on April 24, 1863 by Abraham Lincoln’s Administration to set forth the laws of war for the conflict. Its later recognition in the Geneva Convention has given it status as a codification and restatement of existing laws of war in the 1860s. The Code was written by Francis Lieber, a German immigrant who was among the top legal scholars of the day.
Lieber first defines who is entitled to prisoner of war status:
Art. 49.
A prisoner of war is a public enemy armed or attached to the hostile army for active aid, who has fallen into the hands of the captor, either fighting or wounded, on the field or in the hospital, by individual surrender or by capitulation.
All soldiers, of whatever species of arms; all men who belong to the rising en masse of the hostile country; all those who are attached to the army for its efficiency and promote directly the object of the war, except such as are hereinafter provided for; all disabled men or officers on the field or elsewhere, if captured; all enemies who have thrown away their arms and ask for quarter, are prisoners of war, and as such exposed to the inconveniences as well as entitled to the privileges of a prisoner of war.
Some of you have wondered if civilians attached to armies can be treated a prisoners of war. The answer is yes.
Art. 50.
Moreover, citizens who accompany an army for whatever purpose, such as sutlers, editors, or reporters of journals, or contractors, if captured, may be made prisoners of war, and be detained as such.
The monarch and members of the hostile reigning family, male or female, the chief, and chief officers of the hostile government, its diplomatic agents, and all persons who are of particular and singular use and benefit to the hostile army or its government, are, if captured on belligerent ground, and if unprovided with a safe conduct granted by the captor’s government, prisoners of war.
Art. 51.
If the people of that portion of an invaded country which is not yet occupied by the enemy, or of the whole country, at the approach of a hostile army, rise, under a duly authorized levy en masse to resist the invader, they are now treated as public enemies, and, if captured, are prisoners of war.
While a mass mobilization of civilians prior to occupation is entitled to protections of the laws of war, people mobilized after the occupation (guerrillas) are not protected as prisoners of war. The terminology is arcane, but a captured “public enemy” is entitled to the protections accorded to a prisoner of war, whereas a “brigand” is not. In other words, a public enemy will be imprisoned, while a brigand might be executed or otherwise punished.
Art. 52.
No belligerent has the right to declare that he will treat every captured man in arms of a levy en masse as a brigand or bandit. If, however, the people of a country, or any portion of the same, already occupied by an army, rise against it, they are violators of the laws of war, and are not entitled to their protection.
Just a clarification. For legal purposes, a captured person would want to be treated as a “public enemy” rather than as a “brigand”, the public enemy being entitled to the protections of the laws of war regarding prisoners of war.
If, as a Union army is moving into an area held by the Confederates, the Confederates mobilize the male civilians into hastily thrown together defense units, these men are still entitled to the protections of the laws of war and entitled to be treated as prisoners of war and not as brigands. This goes beyond the common notion of “militias” because these men might not have been in any militia before the approach of Union troops and they might be expected to disband as soon as the Union army retreats.
Not everyone connected to the enemy army is a proper object of capture. Chaplains and medical staff are usually exempt:
Art. 53.
The enemy’s chaplains, officers of the medical staff, apothecaries, hospital nurses and servants, if they fall into the hands of the American Army, are not prisoners of war, unless the commander has reasons to retain them. In this latter case; or if, at their own desire, they are allowed to remain with their captured companions, they are treated as prisoners of war, and may be exchanged if the commander sees fit.
Hostages may only be held as a component of an agreement between the belligerents:
Art. 54
.
A hostage is a person accepted as a pledge for the fulfillment of an agreement concluded between belligerents during the war, or in consequence of a war. Hostages are rare in the present age.
Art. 55.
If a hostage is accepted, he is treated like a prisoner of war, according to rank and condition, as circumstances may admit.
Article 56 bars the imposition of punishment on prisoners of war.
Art. 56.
A prisoner of war is subject to no punishment for being a public enemy, nor is any revenge wreaked upon him by the intentional infliction of any suffering, or disgrace, by cruel imprisonment, want of food, by mutilation, death, or any other barbarity.
The next two articles address the declaration by the Confederacy that most black Union soldiers were not entitled to the protections of the laws of war.
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 warlike acts are not individual crimes or offenses. No belligerent has a right to declare that enemies of a certain class, color, or condition, when properly organized as soldiers, will not be treated by him as public enemies.
Art. 58.
The law of nations knows of no distinction of color, and if an enemy of the United States should enslave and sell any captured persons of their army, it would be a case for the severest retaliation, if not redressed upon complaint.
The United States cannot retaliate by enslavement; therefore death must be the retaliation for this crime against the law of nations.
The final articles contemplate the darkest deeds:
Art. 59.
A prisoner of war remains answerable for his crimes committed against the captor’s army or people, committed before he was captured, and for which he has not been punished by his own authorities.
All prisoners of war are liable to the infliction of retaliatory measures.
The law of nations distained “revenge” but allowed for “retaliation.” The threat of retaliation was seen as the ultimate restraint on the opposing side’s abuses.
Art. 60.
It is against the usage of modern war to resolve, in hatred and revenge, to give no quarter. No body of troops has the right to declare that it will not give, and therefore will not expect, quarter; but a commander is permitted to direct his troops to give no quarter, in great straits, when his own salvation makes it impossible to cumber himself with prisoners.
Art. 61.
Troops that give no quarter have no right to kill enemies already disabled on the ground, or prisoners captured by other troops.
Art. 62.
All troops of the enemy known or discovered to give no quarter in general, or to any portion of the army, receive none.
Follow Reconstruction Blog on Social Media:
1 thought on “The Laws of War: The Lieber Code on the Treatment of Prisoners of War”