April 24, 1863 (a Friday)

Abraham Lincoln

On this date, the Union Army of the United States issued General Order No. 100, signed and authorized by President Abraham Lincoln, which provided a code of conduct for federal soldiers and officers when dealing with Confederate prisoners and civilians during the American Civil War.  There was no document like it in the world at the time, and other countries soon adopted the code. In fact, its influence can be seen on the Geneva Convention.

The German-American jurist and political philosopher Francis Lieber was the principle civilian proponent and principle author of the order, and so it has come to be known as the Lieber Code of 1863.  It is also known as Instructions for the Government of Armies of the United States in the Field, or Lieber Instructions.  Its main sections were concerned with, among other things, how prisoners of war should be treated.  More specifically, it forbade the use of torture to extract confessions and described the rights and duties of prisoners of war and of capturing forces, to wit, Article 16:

Military necessity does not admit of cruelty–that is, the infliction of suffering for the sake of suffering or for revenge, nor of maiming or wounding except in fight, nor of torture to extort confessions.

Lieber consistently opposed the abuse of prisoners, and he quickly dispensed with the notion that captured Southern soldiers should be treated as criminals, traitors, or bandits. Instead, they were to be housed humanely and fed “plain and wholesome food.” Torture and public humiliation were forbidden, and chivalry was very much alive: To reward exemplary bravery and honor, captors could even return sidearms to enemy officers.

The irony of a Republican predecessor opposing torture of enemy combatants nearly 150 years before Bush the Second condoned the practice has not been lost on critics of Bush II. Of course, apologists for the more recent Republican president are fond of pointing out that in other areas, such as habeas corpus, Lincoln was hardly a paragon protector of rights and legal ethics. I fail to see how that exonerates Bush II for his deplorable behavior.

As David Bosco, an assistant professor at the American University School of International Service and a contributing writer to Foreign Policy magazine, has written in an article in The American Scholar entitled “Moral Principle vs. Military Necessity“:

Lieber and Lincoln proudly published their code, flawed and ambiguous though it was. The nation’s current leadership has preferred secret memoranda and strained interpretations. Too often now, the noble effort to expand and codify the international law that Lieber gloried in no longer appeals to the world’s most powerful state. For the good of international law and of the United States, that must change.

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