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From the outbreak of the Civil War, Lincoln’s strategy was to defeat the Confederacy by targeting Southern civilians. One of his first acts was to order a blockade of Southern ports on April 19, 1861, to deny food and medicine, among other items, to civilians. Because such acts violated traditional U.S. military rules of conduct, Lincoln needed a new code to “legalize” his actions.
Lieber was the perfect choice for this task. The Prussian immigrant was contemptuous of the Constitution. He dismissed the federal system it had established as a “confederacies of petty sovereigns” based on the “obsolete ideas” of Thomas Jefferson. He shared Lincoln’s drive to centralize political power in the executive branch of the federal government. They alleged implied powers in the Constitution grant the president in wartime authority to enact legislation as well as to interpret the Constitution — to deny or suspend constitutional rights as the chief executive sees fit.
In 1904, the Geneva Convention with which we are most familiar adopted the Lieber Code almost word for word.
However, the Code contains conflicts within its articles.
Article 15 discusses “military necessity” and its definition allows “destruction of property” – that is, all property can be destroyed if determined to be of “military necessity.”
However, Article 22 states “The principle has been more and more acknowledged that the unarmed citizen is to be spared in person, property, and honor as much as the exigencies of war allow.”
Further, Article 23 of the Code states “Private Citizens are no longer murdered, enslaved or carried off to distant parts and the inoffensive individual is as little disturbed in his private relations as the commander of hostile troops can afford to grant in the overruling demands of a vigorous war.”
But the Code allows for an ultimate “out”: Article 5 states “To save the country (that is, the Union as conceived by the Federal Government) is paramount to all other considerations.”
Therefore, the Leiber Code provides both the rationale AND the cover for Federal ambition.
The rationale for Total War conducted against the South was the concept of “military necessity.”
Military necessity was defined by General David Hunter in 1862 as “those measures which are indispensable for securing the ends of the war” (Burrus M. Carnahan, “Lincoln, Lieber and the Laws of War: The Origins and Limits of the Principle of Military Necessity” – The American Journal of International Law 92, no.2 April 1998, page 215)
In 1863, Lincoln approved the Lieber Code which contained Article 14 that states:
“Military necessity, as understood by modern civilized nations, consists in the necessity of those measures which are indispensable for securing the ends of the war; and which are lawful according to the modern law and usages of war… military necessity admits of all direct destruction of life or limb of armed enemies, and of other persons whose destruction is incidentally unavoidable in the armed contest of the war… of the appropriation of whatever an enemy’s country affords necessary for the subsistence and safety of the army.”
In approving the Lieber code, Lincoln essentially was given the power to do whatever he deemed necessary to win the war, which was defined as the subjugation of the seceding states and establishing total control over them via the authority of the Federal Government’s new vision of the Constitution – that is, one that rejected the voluntary Union established in 1789 for the counter-revolutionary vision of a “perpetual” and “sacred” Union from which it separation was IMPOSSIBLE.
When urged by an Illinois congressman that he should “maul” the South, Lincoln replied “Tell the people of Illinois that I’ll do it” (Donald E. Sutherland, “Abraham Lincoln, John Pope, and the Origins of Total War” – The Journal of Military History, no 4 (October 1992) Page 581)
Given the ferocity of the Battle of Shiloh in April 1862, Ulysses S. Grant decided that the depth of Southern determination to break free of the control of the Federal Government was so deep that simple military victory would be insufficient to defeating it; he decided that to defeat the South he would follow a strategy that would annihilate the South. He would “consume everything (of civilian property) that could be used to support of supply the armies. (Janda page 13)
He and his generals proved themselves in sync with the views of the political leadership in the summer of 1863 when they proceeded to demonstrate how the doctrine of military necessity would be enforced.
Grant wrote to his subordinate commanders (Sherman and Sheridan) that the South was getting what it deserved and that “We are not only fighting hostile armies, but a hostile people, and we must make old and young, rich and poor, feel the hard hand of war. (Janda page 18)
Acting in a manner his commander – and Commander in Chief – would approve, on July 23 1862, General Pope issued Order No. 11, which ordered the US Army Commanders to ‘proceed immediately to arrest all disloyal male citizens within their lines or within their reach in rear of their respective stations.’ If such citizens did not swear an oath of allegiance to the US government, they would be expelled from their homes; if they returned to their homes, they were to be shot as spies; for him who took an oath and violated it “he shall be shot and his property seized…”
The result of this order was that Pope’s troops went on a rampage throughout Tennessee and parts of Virginia, citing his orders to justify acts of plunder and indiscriminate destruction.
A Union general in Stafford Country Virginia observed “our men… now believe they have a perfect right to rob, tyrannize, threaten and maltreat anyone they please, under the orders of Gen. Pope.” (Janda page 12)
Further, there were numerous charges of rape and violence against both Black and White women.
Again, the Lieber Code is filled with restrictions that are obviated by the over-riding requirement of “military necessity” which in reality justifies violating all its more humane rules.
As we list the myriad violations of the code to come, keep in mind that the General Order 100 purports to be a document which on the one hand places limits on military actions and on the other absolves all violations of such limits under the doctrine of “military necessity.”
The code states:
“All wanton violence committed against persons in the invaded country, all destruction of property not commanded by the authorized officer, all robbery, all pillage or sacking, even after taking a place by main force, all rape, wounding, maiming, or killing of such inhabitants, are prohibited under the penalty of death, or such other severe punishment as may seem adequate for the gravity of the offense.”
What is left unsaid by this unequivocal statement was nonetheless not lost on Lincoln or Grant or his subordinates: EXCEPT WHEN REQUIRED BY MILITARY NECESSITY, which undid virtually ALL the protections for civilians and non-combatants that were written in the code.
The fatal contradictions in the Leiber Code allowed for all its apparent protections to be subverted. All Southerners were to be treated as rebels and traitors and as such deserved no protections beyond what the commanders in the field found convenient to grant them.
Paragraph 151 of the code defined the Southern states as ineligible for the very protections the code was supposedly written to enforce:
“The tern rebellion is applied to an insurrection of large extent, and is usually a war between the legitimate government of a country and portions of its provinces of the same who seek to throw off their allegiance to it and set up a government of their own.”
Of course, the great historical irony here is that this is the PRECISELY the concept of Liberty that the colonial governments had in 1776 when they adopted the Declaration of Independence and created the very Union that was now, in a curious case of national patricide, trying to overthrow and destroy.
By defining the Southern position as “rebellion” rather than “secession” the Lieber Code becomes a self-annihilating document, which allows the Federal armed forces to make war on civilians; that is, it considers them “disloyal citizens.”
Paragraph 156 of the Code states that the commander in the field:
“will throw the burden of the war as much as lies within his power on the disloyal citizens” – that is, the very citizens whose place in the “sacred, perpetual union” the Lincoln Government was waging a very bloody and destructive war to preserve.
Lastly, the Code considers any sort of resistance, “armed or unarmed,” to be a war against the Federal Government of the United States and therefore an act of treason.
Before leaving the codes of warfare as they were understood by the opposing armies, we should take a look at the code that was understood to be in force by the Confederacy.
The South, whose military commanders were from families steeped in military tradition, took the codes of conduct towards civilians that were taught in West Point and other military colleges in the South very seriously. They did NOT operate under the doctrine of “military necessity,” which overrode all other humanitarian considerations in pursuit of victory.