The Lieber Code
Washington, D.C., April 24, 1863
Instructions for the Government of Armies of the
United States in the Field by Order of the Secretary of War:
Index
- 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
- Section VI—Exchange of Prisoners—Flags of Truce—Abuse
of the Flag of Truce—Flags of Protection
- Section VII—The Parole
- Section VIII—Armistice—Capitulation
- Section IX—Assassination
- Section X—Insurrection—Civil War—Rebellion
Section I
Martial Law—Military Jurisdiction—Military Necessity—Retaliation
Article I
A Place, district, or country occupied by an enemy stands, in consequence
of the occupation, under the Martial Law of the invading or occupying army,
whether any proclamation declaring Martial Law, or any public warning to
the inhabitants, has been issued or not. Martial Law is the immediate and
direct effect and consequence of occupation or conquest.
The presence of a hostile army proclaims its Martial Law.
Article II
Martial Law does not cease during the hostile occupation, except by
special proclamation, ordered by the commander in chief; or by special
mention in the treaty of peace concluding the war, when the occupation
of a place or territory continues beyond the conclusion of peace as one
of the conditions of the same.
Article III
Martial Law in a hostile country consists in the suspension, by the
occupying military authority, of the criminal and civil law, and of the
domestic administration and government in the occupied place or territory,
and in the substitution of military rule and force for the same, as well
as in the dictation of general laws, as far as military necessity requires
this suspension, substitution, or dictation.
The commander of the forces may proclaim that the administration of
all civil and penal law shall continue either wholly or in part, as in
times of peace, unless otherwise ordered by the military authority.
Article IV
Martial Law is simply military authority exercised in accordance with
the laws and usages of war. Military oppression is not Martial Law; it
is the abuse of the power which that law confers. As Martial Law is executed
by military force, it is incumbent upon those who administer it to be strictly
guided by the principles of justice, honor, and humanity—virtues adorning
a soldier even more than other men, for the very reason that he possesses
the power of his arms against the unarmed.
Article V
Martial Law should be less stringent in places and countries fully occupied
and fairly conquered. Much greater severity may be exercised in places
or regions where actual hostilities exist, or are expected and must be
prepared for. Its most complete sway is allowed—even in the commander's
own country—when face to face with the enemy, because of the absolute necessities
of the case, and of the paramount duty to defend the country against invasion.
To save the country is paramount to all other considerations.
Article VI
All civil and penal law shall continue to take its usual course in the
enemy's places and territories under Martial Law, unless interrupted or
stopped by order of the occupying military power; but all the functions
of the hostile government—legislative, executive, or administrative—whether
of a general, provincial, or local character, cease under Martial Law,
or continue only with the sanction, or, if deemed necessary, the participation
of the occupier or invader.
Article VII
Martial Law extends to property, and to persons, whether they are subjects
of the enemy or aliens to that government.
Article VIII
Consuls, among American and European nations, are not diplomatic agents.
Nevertheless, their offices and persons will be subjected to Martial Law
in cases of urgent necessity only: their property and business are not
exempted. Any delinquency they commit against the established military
rule may be punished as in the case of any other inhabitant, and such punishment
furnishes no reasonable ground for international complaint.
Article IX
The functions of Ambassadors, Ministers, or other diplomatic agents,
accredited by neutral powers to the hostile government, cease, so far as
regards the displaced government; but the conquering or occupying power
usually recognizes them as temporarily accredited to itself.
Article X
Martial Law affects chiefly the police and collection of public revenue
and taxes, whether imposed by the expelled government or by the invader,
and refers mainly to the support and efficiency of the army, its safety,
and the safety of its operations.
Article XI
The law of war does not only disclaim all cruelty and bad faith concerning
engagements concluded with the enemy during the war, but also the breaking
of stipulations solemnly contracted by the belligerents in time of peace,
and avowedly intended to remain in force in case of war between the contracting
powers.
It disclaims all extortions and other transactions for individual gain;
all acts of private revenge, or connivance at such acts.
Offenses to the contrary shall be severely punished, and especially
so if committed by officers.
Article XII
Whenever feasible, Martial Law is carried out in cases of individual
offenders by Military Courts; but sentences of death shall be executed
only with the approval of the chief executive, provided the urgency of
the case does not require a speedier execution, and then only with the
approval of the chief commander.
Article XIII
Military jurisdiction is of two kinds: First, that which is conferred
and defined by statute; second, that which is derived from the common law
of war. Military offenses under the statute law must be tried in the manner
therein directed; but military offenses which do not come within the statute
must be tried and punished under the common law of war. The character of
the courts which exercise these jurisdictions depends upon the local laws
of each particular country.
In the armies of the United States the first is exercised by courts-martial,
while cases which do not come within the "Rules and Articles of War,"
or the jurisdiction conferred by statute on courts-martial, are tried by
military commissions.
Article XIV
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.
Article XV
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 contests of the war; it allows of the capturing
of every armed enemy, and every enemy of importance to the hostile government,
or of peculiar danger to the captor; it allows of all destruction of property,
and obstruction of the ways and channels of traffic, travel, or communication,
and of all withholding of sustenance or means of life from the enemy; of
the appropriation of whatever an enemy's country affords necessary for
the subsistence and safety of the army, and of such deception as does not
involve the breaking of good faith either positively pledged, regarding
agreements entered into during the war, or supposed by the modern law of
war to exist. Men who take up arms against one another in public war do
not cease on this account to be moral beings, responsible to one another
and to God.
Article XVI
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. It does
not admit of the use of poison in any way, nor of the wanton devastation
of a district. It admits of deception, but disclaims acts of perfidy; and,
in general, military necessity does not include any act of hostility which
makes the return to peace unnecessarily difficult.
Article XVII
War is not carried on by arms alone. It is lawful to starve the hostile
belligerent, armed or unarmed, so that it leads to the speedier subjection
of the enemy.
Article XVIII
When a commander of a beseiged place expels the noncombatants, in order
to lessen the number of those who consume his stock of provisions, it is
lawful, though an extreme measure, to drive them back, so as to hasten
on the surrender.
Article XIX
Commanders, whenever admissible, inform the enemy of their intention
to bombard a place, so that the noncombatants, and especially the women
and children, may be removed before the bombardment commences. But it is
no infraction of the common law of war to omit thus to inform the enemy.
Surprise may be a necessity.
Article XX
Public war is a state of armed hostility between sovereign nations or
governments. It is a law and requisite of civilized existence that men
live in political, continuous societies, forming organized units, called
states or nations, whose constituents bear, enjoy, and suffer, advance
and retrograde together, in peace and in war.
Article XXI
The citizen or native of a hostile country is thus an enemy, as one
of the constituents of the hostile state or nation, and as such is subjected
to the hardships of the war.
Article XXII
Nevertheless, as civilization has advanced during the last centuries,
so has likewise steadily advanced, especially in war on land, the distinction
between the private individual belonging to a hostile country and the hostile
country itself, with its men in arms. 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 will admit.
Article XXIII
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 the hostile troops can afford
to grant in the overruling demands of a vigorous war.
Article XXIV
The almost universal rule in remote times was, and continues to be with
barbarous armies, that the private individual of the hostile country is
destined to suffer every privation of liberty and protection, and every
destruction of family ties. Protection was, and still is with uncivilized
people, the exception.
Article XXV
In modern regular wars of the Europeans, and their descendants in other
portions of the globe, protection of the inoffensive citizen of the hostile
country is the rule; privation and disturbance of private relations are
the exceptions.
Article XXVI
Commanding generals may cause the magistrates and civil officers of
the hostile country to take the oath of temporary allegiance or an oath
of fidelity to their own victorious government or rulers, and they may
expel every one who declines to do so. But whether they do so or not, the
people and their civil officers owe strict obedience to them as long as
they hold sway over the distrinct or country, at the peril of their lives.
Article XXVII
The law of war can no more wholly dispense with retaliation than can
the law of nations, of which it is a branch. Yet civilized nations acknowledge
retaliation as the sternest feature of war. A reckless enemy often leaves
to his opponent no other means of securing himself against the repetition
of barbarous outrage.
Article XXVIII
Retaliation will, therefore, never be resorted to as a measure of mere
revenge, but only as a means of protective retribution, and moreover, cautiously
and unavoidably; that is to say, retaliation shall only be resorted to
after careful inquiry into the real occurrence, and the character of the
misdeeds that may demand retribution.
Unjust or inconsiderate retaliation removes the belligerents farther
and farther from the mitigating rules of regular war, and by rapid steps
leads them nearer to the internecine wars of savages.
Article XXIX
Modern times are distinguished from earlier ages by the existence, at
one and the same time, of many nations and great governments related to
one another in close intercourse.
Peace is their normal condition; war is the exception. The ultimate
object of all modern war is a renewed state of peace.
The more vigorously wars are pursued, the better it is for humanity.
Sharp wars are brief.
Article XXX
Ever since the formation and coexistence of modern nations, and ever
since wars have become great national wars, war has come to be acknowledged
not to be its own end, but the means to obtain great ends of state, or
to consist in defense against wrong; and no conventional restriction of
the modes adopted to injure the enemy is any longer admitted; but the law
of war imposes many limitations and restrictions on principles of justice,
faith, and honor.
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
Article XXXI
A victorious army appropriates all public money, seizes all public movable
property until further direction by its government, and sequesters for
its own benefit or of that of its government all the revenues of real property
belonging to the hostile government or nation. The title to such real property
remains in abeyance during military occupation, and until the conquest
is made complete.
Article XXXII
A victorious army, by the martial power inherent in the same, may suspend,
change, or abolish, as far as the martial power extends, the relations
which arise from the services due, according to the existing laws of the
invaded country, from one citizen, subject, or native of the same to another.
The commander of the army must leave it to the ultimate treaty of peace
to settle the permanency of this change.
Article XXXIII
It is no longer considered lawful—on the contrary, it is held to be
a serious breach of the law of war—to force the subjects of the enemy into
the service of the victorious government, except the latter should proclaim,
after a fair and complete conquest of the hostile country or district,
that it is resolved to keep the country, district, or place permanently
as its own and make it a portion of its own country.
Article XXXIV
As a general rule, the property belonging to churches, to hospitals,
or other establishments of an exclusively charitable character, to establishments
of education, or foundations for the promotion of knowledge, whether public
schools, universities, academies of learning or observatories, museums
of the fine arts, or of a scientific character—such property is not to
be considered public property in the sense of paragraph XXXI; but it may
be taxed or used when the public service may require it.
Article XXXV
Classical works of art, libraries, scientific collections, or precious
instruments, such as astronomical telescopes, as well as hospitals, must
be secured against all avoidable injury, even when they are contained in
fortified places whilst besieged or bombarded.
Article XXXVI
If such works of art, libraries, collections, or instruments belonging
to a hostile nation or government can be removed without injury, the ruler
of the conquering state or nation may order them to be seized and removed
for the benefit of the said nation. The ultimate ownership is to be settled
by the ensuing treaty of peace.
In no case shall they be sold or given away, if captured by the armies
of the United States, nor shall they ever be privately appropriated, or
wantonly destroyed or injured.
Article XXXVII
The United States acknowledge and protect, in hostile countries occupied
by them, religion and morality; strictly private property; the persons
of the inhabitants, especially those of women; and the sacredness of domestic
relations. Offenses to the contrary shall be rigorously punished.
This rule does not interfere with the right of the victorious invader
to tax the people or their property, to levy forced loans, to billet soldiers,
or to appropriate property, especially houses, lands, boats or ships, and
churches, for temporary and military uses.
Article XXXVIII
Private property, unless forfeited by crimes or by offenses of the owner,
can be seized only by way of military necessity, for the support or other
benefit of the army or of the United States.
If the owner has not fled, the commanding officer will cause receipts
to be given, which may serve the spoliated owner to obtain indemnity.
Article XXXIX
The salaries of civil officers of the hostile government who remain
in the invaded territory, and continue the work of their office, and can
continue it according to the circumstances arising out of the war—such
as judges, administrative or police officers, officers of city or communal
governments—are paid from the public revenue of the invaded territory,
until the military government has reason wholly or partially to discontinue
it. Salaries or incomes connected with purely honorary titles are always
stopped.
Article XL
There exists no law or body of authoritative rules of action between
hostile armies, except that branch of the law of nature and nations which
is called the law and usages of war on land.
Article XLI
All municipal law of the ground on which the armies stand, or of the
countries to which they belong, is silent and of no effect between armies
in the field.
Article XLII
Slavery, complicating and confounding the ideas of property (that is,
of a thing), and of personality (that is, of humanity), exists
according to municipal or local law only. The law of nature and nations
has never acknowledged it. The digest of the Roman law enacts the early
dictum of the pagan jurist, that "so far as the law of nature is concerned,
all men are equal." Fugitives escaping from a country in which they
were slaves, villains, or serfs, into another country, have, for centuries
past, been held free and acknowledged free by judicial decisions of European
countries, even though the municipal law of the country in which the slave
had taken refuge acknowledged slavery within its own dominions.
Article XLIII
Therefore, in a war between the United States and a belligerent which
admits of slavery, if a person held in bondage by that belligerent be captured
by or come as a fugitive under the protection of the military forces of
the United States, such person is immediately entitled to the rights and
privileges of a freeman. To return such person into slavery would amount
to enslaving a free person, and neither the United States nor any officer
under their authority can enslave any human being. Moreover, a person so
made free by the law of war is under the shield of the law of nations,
and the former owner or State can have, by the law of postliminy, no belligerent
lien or claim of service.
Article XLIV
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.
A soldier, officer, or private, in the act of committing such violence,
and disobeying a superior ordering him to abstain from it, may be lawfully
killed on the spot by such superior.
Article XLV
All captures and booty belong, according to the modern law of war, primarily
to the government of the captor.
Prize money, whether on sea or land, can now only be claimed under local
law.
Article XLVI
Neither officers nor soldiers are allowed to make use of their position
or power in the hostile country for private gain, not even for commercial
transactions otherwise legitimate. Offenses to the contrary committed by
commissioned officers will be punished with cashiering or such other punishment
as the nature of the offense may require; if by soldiers, they shall be
punished according to the nature of the offense.
Article XLVII
Crimes punishable by all penal codes, such as arson, murder, maiming,
assaults, highway robbery, theft, burglary, fraud, forgery, and rape, if
committed by an American soldier in a hostile country against its inhabitants,
are not only punishable as at home, but in all cases in which death is
not inflicted, the severer punishment shall be preferred.
Section III
Deserters—Prisoners of War—Hostages—Booty on the Battlefield
Article XLVIII
Deserters from the American Army, having entered the service of the
enemy, suffer death if they fall again into the hands of the United States,
whether by capture, or being delivered up to the American Army; and if
a deserter from the enemy, having taken service in the Army of the United
States is captured by the enemy, and punished by them with death or otherwise,
it is not a breach against the law and usages of war, requiring redress
or retaliation.
Article XLIX
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.
Article L
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 reigning hostile 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.
Article LI
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.
Article LII
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.
Article LIII
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.
Article LIV
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.
Article LV
If a hostage is accepted, he is treated like a prisoner of war, according
to rank and condition, as circumstances may admit.
Article LVI
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.
Article LVII
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.
Article LVIII
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.
Article LIX
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.
Article LX
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.
Article LXI
Troops that give no quarter have no right to kill enemies already disabled
on the ground, or prisoners captured by other troops.
Article LXII
All troops of the enemy known or discovered to give no quarter in general,
or to any portion of the army, receive none.
Article LXIII
Troops who fight in the uniform of their enemies, without any plain,
striking, and uniform mark of distinction of their own, can expect no quarter.
Article LXIV
If American troops capture a train containing uniforms of the enemy,
and the commander considers it advisable to distribute them for use among
his men, some striking mark or sign must be adopted to distinguish the
American soldier from the enemy.
Article LXV
The use of the enemy's national standard, flag, or other emblem of nationality,
for the purpose of deceiving the enemy in battle, is an act of perfidy
by which they lose all claim to the protection of the laws of war.
Article LXVI
Quarter having been given to an enemy by American troops, under a misapprehension
of his true character, he may, nevertheless, be ordered to suffer death
if, within three days after the battle, it be discovered that he belongs
to a corps which gives no quarter.
Article LXVII
The law of nations allows every sovereign government to make war upon
another sovereign state, and, therefore, admits of no rules or laws different
from those of regular warfare, regarding the treatment of prisoners of
war, although they may belong to the army of a government which the captor
may consider as a wanton and unjust assailant.
Article LXVIII
Modern wars are not internecine wars, in which the killing of the enemy
is the object. The destruction of the enemy in modern war, and indeed,
modern war itself, are means to obtain that object of the belligerent which
lies beyond the war.
Unnecessary or revengeful destruction of life is not lawful.
Article LXIX
Outposts, sentinels, or pickets are not to be fired upon, except to
drive them in, or when a positive order, special or general, has been issued
to that effect.
Article LXX
The use of poison in any manner, be it to poison wells, or food, or
arms, is wholly excluded from modern warfare. He that uses it puts himself
out of the pale of the law and usages of war.
Article LXXI
Whoever intentionally inflicts additional wounds on an enemy already
wholly disabled, or kills such an enemy, or who orders or encourages soldiers
to do so, shall suffer death, if duly convicted, whether he belongs to
the Army of the United States, or is an enemy captured after having committed
his misdeed.
Article LXXII
Money and other valuables on the person of a prisoner, such as watches
or jewelry, as well as extra clothing, are regarded by the American Army
as the private property of the prisoner, and the appropriation of such
valuables or money is considered dishonorable, and is prohibited.
Nevertheless, if large sums are found upon the persons of prisoners,
or in their possession, they shall be taken from them, and the surplus,
after providing for their own support, appropriated for the use of the
army, under the direction of the commander, unless otherwise ordered by
the government. Nor can prisoners claim, as private property, large sums
found and captured in their train, although they have been placed in the
private luggage of the prisoners.
Article LXXIII
All officers, when captured, must surrender their side arms to the captor.
They may be restored to the prisoner in marked cases, by the commander,
to signalize admiration of his distinguished bravery of approbation of
his humane treatment of prisoners before his capture. The captured officer
to whom they may be restored cannot wear them during captivity.
Article LXXIV
A prisoner of war, being a public enemy, is the prisoner of the government,
and not of the captor. No ransom can be paid by a prisoner of war to his
individual captor or to any officer in command. The government alone releases
captives, according to rules prescribed by itself.
Article LXXV
Prisoners of war are subject to confinement or imprisonment such as
may be deemed necessary on account of safety, but they are to be subjected
to no other intentional suffering or indignity. The confinement and mode
of treating a prisoner may be varied during his captivity according to
the demands of safety.
Article LXXVI
Prisoners of war shall be fed upon plain and wholesome food, whenever
practicable, and treated with humanity.
They may be required to work for the benefit of the captor's government,
according to their rank and condition.
Article LXXVII
A prisoner of war who escapes may be shot or otherwise killed in his
flight; but neither death nor any other punishment shall be inflicted upon
him simply for his attempt to escape, which the law of war does not consider
a crime. Stricter means of security shall be used after an unsuccessful
attempt at escape.
If, however, a conspiracy is discovered, the purpose of which is a united
or general escape, the conspirators may be rigorously punished, even with
death; and capital punishment may also be inflicted upon prisoners of war
discovered to have plotted rebellion against the authorities of the captors,
whether in union with fellow prisoners or other persons.
Article LXXVIII
If prisoners of war, having given no pledge nor made any promise on
their honor, forcibly or otherwise escape, and are captured again in battle
after having rejoined their own army, they shall not be punished for their
escape, but shall be treated as simple prisoners of war, although they
will be subjected to stricter confinement.
Article LXXIX
Every captured wounded enemy shall be medically treated, according to
the ability of the medical staff.
Article LXXX
Honorable men, when captured, will abstain from giving to the enemy
information concerning their own army, and the modern law of war permits
no longer the use of any violence against prisoners in order to extort
the desired information or to punish them for having given false information.
Section IV
Partisans—Armed Enemies Not Belonging to the Hostile Army—Scouts—Armed
Prowlers—War-Rebels
Article LXXXI
Partisans are soldiers armed and wearing the uniform of their army,
but belonging to a corps which acts detached from the main body for the
purpose of making inroads into the territory occupied by the enemy. If
captured, they are entitled to all the privileges of the prisoner of war.
Article LXXXII
Men, or squads of men, who commit hostilities, whether by fighting,
or inroads for destruction or plunder, or by raids of any kind, without
commission, without being part and portion of the organized hostile army,
and without sharing continuously in the war, but who do so with intermitting
returns to their homes and avocations, or with the occasional assumption
of the semblance of peaceful pursuits, divesting themselves of the character
or appearance of soldiers—such men, or squads of men, are not public enemies,
and, therefore, if captured, are not entitled to the privileges of prisoners
of war, but shall be treated summarily as highway robbers or pirates.
Article LXXXIII
Scouts, or single soldiers, if disguised in the dress of the country
or in the uniform of the army hostile to their own, employed in obtaining
information, if found within or lurking about the lines of the captor,
are treated as spies, and suffer death.
Article LXXXIV
Armed prowlers, by whatever names they may be called, or persons of
the enemy's territory, who steal within the lines of the hostile army for
the purpose of robbing, killing, or of destroying bridges, roads, or canals,
or of robbing or destroying the mail, or of cutting the telegraph wires,
are not entitled to the privileges of the prisoner of war.
Article LXXXV
War-rebels are persons within an occupied territory who rise in arms
against the occupying or conquering army, or against the authorities established
by the same. If captured, they may suffer death, whether they rise singly,
in small or large bands, and whether called upon to do so by their own,
but expelled, government or not. They are not prisoners of war; nor are
they if discovered and secured before their conspiracy has matured to an
actual rising or armed violence.
Section V
Safe-conduct—Spies—War-traitors—Captured Messengers
Article LXXXVI
All intercourse between the territories occupied by belligerent armies,
whether by traffic, by letter, by travel, or in any other way, ceases.
This is the general rule, to be observed without special proclamation.
Exceptions to this rule, whether by safe-conduct, or permission to trade
on a small or large scale, or by exchanging mails, or by travel from one
territory into the other, can take place only according to agreement approved
by the goverment, or by the highest military authority.
Contraventions of this rule are highly punishable.
Article LXXXVII
Ambassadors, and all other diplomatic agents of neutral powers, accredited
to the enemy, may receive safe-conducts through the territories occupied
by the belligerents, unless there are military reasons to the contrary,
and unless they may reach the place of their destination conveniently by
another route. It implies no international affront if the safe-conduct
is declined. Such passes are usually given by the supreme authority of
the State and not by subordinate officers.
Article LXXXVIII
A spy is a person who secretly, in disguise or under false pretense,
seeks information with the intention of communicating it to the enemy.
The spy is punishable with death by hanging by the neck, whether or
not he succeed in obtaining the information or in conveying it to the enemy.
Article LXXXIX
If a citizen of the United States obtains information in a legitimate
manner, and betrays it to the enemy, be he a military or civil officer,
or a private citizen, he shall suffer death.
Article XC
A traitor under the law of war, or a war-traitor, is a person in a place
or district under martial law who, unauthorized by the military commander,
gives information of any kind to the enemy, or holds intercourse with him.
Article XCI
The war-traitor is always severely punished. If his offense consists
in betraying to the enemy anything concerning the condition, safety, operations,
or plans of the troops holding or occupying the place or district, his
punishment is death.
Article XCII
If the citizen or subject of a country or place invaded or conquered
gives information to his own government, from which he is separated by
the hostile army, or to the army of his government, he is a war-traitor,
and death is the penalty of his offense.
Article XCIII
All armies in the field stand in need of guides, and impress them if
they cannot obtain them otherwise.
Article XCIV
No person having been forced by the enemy to serve as guide is punishable
for having done so.
Article XCV
If a citizen of a hostile and invaded district voluntarily serves as
a guide to the enemy, or offers to do so, he is deemed a war-traitor, and
shall suffer death.
Article XCVI
A citizen serving voluntarily as a guide against his own country commits
treason, and will be dealt with according to the law of his country.
Article XCVII
Guides, when it is clearly proved that they have misled intentionally,
may be put to death.
Article XCVIII
All unauthorized or secret communication with the enemy is considered
treasonable by the law of war.
Foreign residents in an invaded or occupied territory, or foreign visitors
in the same, can claim no immunity from this law. They may communicate
with foreign parts, or with the inhabitants of the hostile country, so
far as the military authority permits, but no further. Instant expulsion
from the occupied territory would be the very least punishment for the
infraction of this rule.
Article XCIX
A messenger carrying written dispatches or verbal messages from one
portion of the army, or from a besieged place, to another portion of the
same army, or its government, if armed, and in the uniform of his army,
and if captured, while doing so, in the territory occupied by the enemy,
is treated by the captor as a prisoner of war. If not in uniform, nor a
soldier, the circumstances connected with his capture must determine the
disposition that shall be made of him.
Article C
A messenger or agent who attempts to steal through the territory occupied
by the enemy, to further, in any manner, the interests of the enemy, if
captured, is not entitled to the privileges of the prisoner of war, and
may be dealt with according to the circumstances of the case.
Article CI
While deception in war is admitted as a just and necessary means of
hostility, and is consistent with honorable warfare, the common law of
war allows even capital punishment for clandestine or treacherous attempts
to injure an enemy, because they are so dangerous, and it is so difficult
to guard against them.
Article CII
The law of war, like the criminal law regarding other offenses, makes
no difference on account of the difference of sexes, concerning the spy,
the war-traitor, or the war-rebel.
Article CIII
Spies, war-traitors, and war-rebels are not exchanged according to the
common law of war. The exchange of such persons would require a special
cartel, authorized by the government, or, at a great distance from it,
by the chief commander of the army in the field.
Article CIV
A successful spy or war-traitor, safely returned to his own army, and
afterwards captured as an enemy, is not subject to punishment for his acts
as a spy or war-traitor, but he may be held in closer custody as a person
individually dangerous.
Section VI
Exchange of Prisoners—Flags of Truce—Abuse of the Flag of Truce—Flags of
Protection
Article CV
Exchanges of prisoners take place—number for number—rank for rank—wounded
for wounded—with added condition for added condition—such, for instance,
as not to serve for a certain period.
Article CVI
In exchanging prisoners of war, such numbers of persons of inferior
rank may be substituted as an equivalent for one of superior rank as may
be agreed upon by cartel, which requires the sanction of the government,
or of the commander of the army in the field.
Article CVII
A prisoner of war is in honor bound truly to state to the captor his
rank; and he is not to assume a lower rank than belongs to him, in order
to cause a more advantageous exchange, nor a higher rank, for the purpose
of obtaining better treatment.
Offenses to the contrary have been justly punished by the commanders
of released prisoners, and may be good cause for refusing to release such
prisoners.
Article CVIII
The surplus number of prisoners of war remaining after an exchange has
taken place is sometimes released either for the payment of a stipulated
sum of money, or, in urgent cases, of provision, clothing, or other necessaries.
Such arrangement, however, requires the sanction of the highest authority.
Article CIX
The exchange of prisoners of war is an act of convenience to both belligerents.
If no general cartel has been concluded, it cannot be demanded by either
of them. No belligerent is obliged to exchange prisoners of war.
A cartel is voidable as soon as either party has violated it.
Article CX
No exchange of prisoners shall be made except after complete capture,
and after an accurate account of them, and a list of the captured officers,
has been taken.
Article CXI
The bearer of a flag of truce cannot insist upon being admitted. He
must always be admitted with great caution. Unnecessary frequency is carefully
to be avoided.
Article CXII
If the bearer of a flag of truce offer himself during an engagement,
he can be admitted as a very rare exception only. It is no breach of good
faith to retain such flag of truce, if admitted during the engagement.
Firing is not required to cease on the appearance of a flag of truce in
battle.
Article CXIII
If the bearer of a flag of truce, presenting himself during an engagement,
is killed or wounded, it furnishes no ground of complaint whatever.
Article CXIV
If it be discovered, and fairly proved, that a flag of truce has been
abused for surreptitiously obtaining military knowledge, the bearer of
the flag thus abusing his sacred character is deemed a spy.
So sacred is the character of a flag of truce, and so necessary is its
sacredness, that while its abuse is an especially heinous offense, great
caution is requisite, on the other hand, in convicting the bearer of a
flag of truce as a spy.
Article CXV
It is customary to designate by certain flags (usually yellow) the hospitals
in places which are shelled, so that the beseiging enemy may avoid firing
on them. The same has been done in battles, when hospitals are situated
within the field of engagement.
Article CXVI
Honorable belligerents often request that the hospitals within the territory
of the enemy may be designated, so that they may be spared.
An honorable belligerent allows himself to be guided by flags or signals
of protection as much as the contingencies and the necessities of the fight
will permit.
Article CXVII
It is justly considered an act of bad faith, of infamy or fiendishness,
to deceive the enemy by flags of protection. Such act of bad faith may
be good cause for refusing to respect such flags.
Article CXVIII
The besieging belligerent has sometimes requested the besieged to designate
the buildings containing collections of works of art, scientific museums,
astronomical observatories, or precious libraries, so that their destruction
may be avoided as much as possible.
Section VII
The Parole
Article CXIX
Prisoners of war may be released from captivity by exchange, and, under
certain circumstances, also by parole.
Article CXX
The term "Parole" designates the pledge of individual good
faith and honor to do, or to omit doing, certain acts after he who gives
his parole shall have been dismissed, wholly or partially, from the power
of the captor.
Article CXXI
The pledge of the parole is always an individual, but not a private,
act.
Article CXXII
The parole applies chiefly to prisoners of war whom the captor allows
to return to their country, or to live in greater freedom within the captor's
country or territory, on conditions stated in the parole.
-
Article CXXIII
Release of prisoners of war by exchange is the general rule; release
by parole is the exception.
Article CXXIV
Breaking the parole is punished with death when the person breaking
the parole is captured again.
Accurate lists, therefore, of the paroled persons must be kept by the
belligerents.
Article CXXV
When paroles are given and received there must be an exchange of two
written documents, in which the name and rank of the paroled individuals
are accurately and truthfully stated.
Article CXXVI
Commissioned officers only are allowed to give their parole, and they
can give it only with the permission of their superior, as long as a superior
in rank is within reach.
Article CXXVII
No noncommissioned officer or private can give his parole except through
an officer. Individual paroles not given through an officer are not only
void, but subject the individuals giving them to the punishment of death
as deserters. The only admissible exception is where individuals, properly
separated from their commands, have suffered long confinement without the
possibility of being paroled through an officer.
Article CXXVIII
No paroling on the battlefield; no paroling of entire bodies of troops
after a battle, and no dismissal of large numbers of prisoners, with a
general declaration that they are paroled, is permitted, or of any value.
Article CXXIX
In capitulations for the surrender of strong places or fortified camps
the commanding officer, in cases of urgent necessity, may agree that the
troops under his command shall not fight again during the war, unless exchanged.
Article CXXX
The usual pledge given in the parole is not to serve during the existing
war, unless exchanged.
This pledge refers only to the active service in the field, against
the paroling belligerent or his allies actively engaged in the same war.
These cases of breaking the parole are patent acts, and can be visited
with the punishment of death; but the pledge does not refer to internal
service, such as recruiting or drilling the recruits, fortifying places
not besieged, quelling civil commotions, fighting against belligerents
unconnected with the paroling belligerents, or to civil or diplomatic service
for which the paroled officer may be employed.
Article CXXXI
If the government does not approve of the parole, the paroled officer
must return into captivity, and should the enemy refuse to receive him,
he is free of his parole.
Article CXXXII
A belligerent government may declare, by a general order, whether it
will allow paroling, and on what conditions it will allow it. Such order
is communicated to the enemy.
Article CXXXIII
No prisoner of war can be forced by the hostile government to parole
himself, and no government is obliged to parole prisoners of war, or to
parole all captured officers, if it paroles any. As the pledging of the
parole is an individual act, so is paroling, on the other hand, an act
of choice on the part of the belligerent.
Article CXXXIV
The commander of an occupying army may require of the civil officers
of the enemy, and of its citizens, any pledge he may consider necessary
for the safety or security of his army, and upon their failure to give
it he may arrest, confine, or detain them.
Section VIII
Armistice—Capitulation
Article CXXXV
An armistice is the cessation of active hostilities for a period agreed
between belligerents. It must be agreed upon in writing, and duly ratified
by the highest authorities of the contending parties.
Article CXXXVI
If an armistice be declared, without conditions, it extends no further
than to require a total cessation of hostilities along the front of both
belligerents.
If conditions be agreed upon, they should be clearly expressed, and
must be rigidly adhered to by both parties. If either party violates any
express condition, the armistice may be declared null and void by the other.
Article CXXXVII
An armistice may be general, and valid for all points or lines of the
belligerents; or special, that is, referring to certain troops or certain
localities only.
An armistice may be concluded for a definite time; or for an indefinite
time, during which either belligerent may resume hostilities on giving
the notice agreed upon to the other.
Article CXXXVIII
The motives which induce the one or the other belligerent to conclude
an armistice, whether it be expected to be preliminary to a treaty of peace,
or to prepare during the armistice for a more vigorous prosecution of the
war, does in no way affect the character of the armistice itself.
Article CXXXIX
An armistice is binding upon the belligerents from the day of the agreed
commencement; but the officers of the armies are responsible from the day
only when they receive official information of its existence.
Article CXL
Commanding officers have the right to conclude armistices binding on
the district over which their command extends, but such armistice is subject
to the ratification of the superior authority, and ceases so soon as it
is made known to the enemy that the armistice is not ratified, even if
a certain time for the elapsing between giving notice of cessation and
the resumption of hostilities should have been stipulated for.
Article CXLI
It is incumbent upon the contracting parties of an armistice to stipulate
what intercourse of persons or traffic between the inhabitants of the territories
occupied by the hostile armies shall be allowed, if any.
If nothing is stipulated the intercourse remains suspended, as during
actual hostilities.
Article CXLII
An armistice is not a partial or a temporary peace; it is only the suspension
of military operations to the extent agreed upon by the parties.
Article CXLIII
When an armistice is concluded between a fortified place and the army
besieging it, it is agreed by all the authorities on this subject that
the besieger must cease all extension, perfection, or advance of his attacking
works as much so as from attacks by main force.
But as there is a difference of opinion among martial jurists, whether
the beseiged have the right to repair breaches or to erect new works of
defense within the place during an armistice, this point should be determined
by express agreement between the parties.
Article CXLIV
So soon as a capitulation is signed, the capitulator has no right to
demolish, destroy, or injure the works, arms, stores, or ammunition, in
his possession, during the time which elapses between the signing and the
execution of the capitulation, unless otherwise stipulated in the same.
Article CXLV
When an armistice is clearly broken by one of the parties, the other
party is released from all obligation to observe it.
Article CXLVI
Prisoners taken in the act of breaking an armistice must be treated
as prisoners of war, the officer alone being responsible who gives the
order for such a violation of an armistice. The highest authority of the
belligerent aggrieved may demand redress for the infraction of an armistice.
Article CXLVII
Belligerents sometimes conclude an armistice while their plenipotentiaries
are met to discuss the conditions of a treaty of peace; but plenipotentiaries
may meet without a preliminary armistice; in the latter case, the war is
carried on without any abatement.
Section IX
Assassination
Article CXLVIII
The law of war does not allow proclaiming either an individual belonging
to the hostile army, or a citizen, or a subject of the hostile government,
an outlaw, who may be slain without trial by any captor, any more than
the modern law of peace allows such intentional outlawry; on the contrary,
it abhors such outrage. The sternest retaliation should follow the murder
committed in consequence of such proclamation, made by whatever authority.
Civilized nations look with horror upon offers of rewards for the assassination
of enemies as relapses into barbarism.
Section X
Insurrection—Civil War—Rebellion
Article CXLI
Insurrection is the rising of people in arms against their government,
or a portion of it, or against one or more of its laws, or against an officer
or officers of the government. It may be confined to mere armed resistance,
or it may have greater ends in view.
Article CL
Civil war is war between two or more portions of a country or state,
each contending for the mastery of the whole, and each claiming to be the
legitimate government. The term is also sometimes applied to war of rebellion,
when the rebellious provinces or portion of the state are contiguous to
those containing the seat of government.
Article CLI
The term "rebellion" is applied to an insurrection of large
extent, and is usually a war between the legitimate government of a country
and portions of provinces of the same who seek to throw off their allegiance
to it and set up a government of their own.
Article CLII
When humanity induces the adoption of the rules of regular war toward
rebels, whether the adoption is partial or entire, it does in no way whatever
imply a partial or complete acknowledgment of their government, if they
have set up one, or of them, as an independent and sovereign power. Neutrals
have no right to make the adoption of the rules of war by the assailed
government toward rebels the ground of their own acknowledgment of the
revolted people as an independent power.
Article CLIII
Treating captured rebels as prisoners of war, exchanging them, concluding
of cartels, capitulations, or other warlike agreements with them; addressing
officers of a rebel army by the rank they may have in the same; accepting
flags of truce; or, on the other hand, proclaiming martial law in their
territory, or levying war-taxes or forced loans, or doing any other act
sanctioned or demanded by the law and usages of public war between sovereign
belligerents, neither proves nor establishes an acknowledgment of the rebellious
people, or of the government which they may have erected, as a public or
sovereign power. Nor does the adoption of the rules of war toward rebels
imply an engagement with them extending beyond the limits of these rules.
It is victory in the field that ends the strife and settles the future
relations between the contending parties.
Article CLIV
Treating, in the field, the rebellious enemy according to the law and
usages of war has never prevented the legitimate government from trying
the leaders of the rebellion or chief rebels for high treason, and from
treating them accordingly, unless they are included in a general amnesty.
Article CLV
All enemies in regular war are divided into two general classes—that
is to say, into combatants and noncombatants, or unarmed citizens of the
hostile government.
The military commander of the legitimate government, in a war of rebellion,
distinguishes between the loyal citizen in the revolted portion of the
country and the disloyal citizen. The disloyal citizens may further be
classified into those citizens known to sympathize with the rebellion without
positively aiding it, and those who, without taking up arms, give positive
aid and comfort to the rebellious enemy without being bodily forced thereto.
Article CLVI
Common justice and plain expediency require that the military commander
protect the manifestly loyal citizens, in revolted territories, against
the hardships of the war as much as the common misfortune of all war admits.
The commander will throw the burden of the war, as much as lies within
his power, on the disloyal citizens, of the revolted portion or province,
subjecting them to a stricter police than the noncombatant enemies have
to suffer in regular war; and if he deems it appropriate, or if his government
demands of him that every citizen shall, by an oath of allegiance, or by
some other manifest act, declare his fidelity to the legitimate government,
he may expel, transfer, imprison, or fine the revolted citizens who refuse
to pledge themselves anew as citizens obedient to the law and loyal to
the government.
Whether it is expedient to do so, and whether reliance can be placed
upon such oaths, the commander or his government has the right to decide.
Article CLVII
Armed or unarmed resistance by citizens of the United States against
the lawful movements of their troops is levying war against the United
States, and is therefore treason.
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