The Lieber Code of April 24, 1863, also known as Instructions for the Government of Armies of the United States in the Field, General Order No. 100, or Lieber Instructions, was an instruction signed by President Abraham Lincoln to the Union Forces of the United States during the American Civil War that dictated how soldiers should conduct themselves in wartime.
The main sections were concerned with martial law, military jurisdiction, and the treatment of spies, deserters and prisoners of war.
widely considered to be the first written recital of the customary law of war, in force between the civilized nations and peoples since time immemorial, and the precursor to the Hague Regulations of 1907, the treaty-based restatement of the customary law of war.
while it is true that commanders such as William Tecumseh Sherman rarely if ever consulted the Code in making combat decisions, the Code played a significant role nonetheless in the war's last two years. It provided a blueprint for hundreds of military commissions charging law of war violations. The Lieber Code was used extensively during the Philippine-American War as a justification and later a defense for actions against the native population
Both the Lieber Code and the Hague Regulations of 1907, which took much of the Lieber Code and wrote it into the international treaty law, included practices that would be considered illegal or extremely questionable by today's standards.
The Lieber Code was used extensively during the Philippine-American War as a justification and later a defense for actions against the native population
a series of international treaties and declarations negotiated at two international peace conferences at The Hague in the Netherlands.
The Hague Conventions of 1899 and 1907 were the first multilateral treaties that addressed the conducts of warfare and were largely based on the Lieber Code, which was signed and issued by U.S. President Abraham Lincoln to the Union Forces of the United States in April 24, 1863, during the American Civil War.
the [Lieber] codes were widely regarded as the best summary of the first customary laws and customs of war in the 19th century
Much of the regulations in the Hague Conventions were borrowed heavily from the Lieber Code.
Though not negotiated in The Hague, the Geneva Protocol to the Hague Conventions is considered an addition to the Conventions. Signed on 17 June 1925 and entering into force on 8 February 1928, its single article permanently bans the use of all forms of chemical and biological warfare. The protocol grew out of the increasing public outcry against chemical warfare following the use of mustard gas and similar agents in World War I, and fears that chemical and biological warfare could lead to horrific consequences in any future war. The protocol has since been augmented by the Biological Weapons Convention (1972) and the Chemical Weapons Convention (1993).
After World War II, the judges of the military tribunal of the Trial of German Major War Criminals at Nuremberg Trials found that by 1939, the rules laid down in the 1907 Hague Convention were recognised by all civilised nations and were regarded as declaratory of the laws and customs of war. Under this post-war decision, a country did not have to have ratified the 1907 Hague Convention in order to be bound by them.
Cross-referencing Posts #17 and #18 Re: The League of Nations and the Geneva Protocol at 4um Title: John McCain and Lindsey Graham criticise US-Russia deal on Syria
The Martens Clause was introduced into the preamble to the 1899 Hague Convention II – Laws and Customs of War on Land.
The clause took its name from a declaration read by Fyodor Fyodorovich Martens, the Russian delegate at the Hague Peace Conferences 1899 and was based upon his words
The Clause appears in a slightly modified form in the 1907 Hague conventions
The Clause was introduced as a compromise wording for the dispute between the Great Powers who considered francs-tireurs to be unlawful combatants subject to execution on capture and smaller states who maintained that they should be considered lawful combatants.
The clause did not appear in the Geneva Conventions of 1949, but was it included in the additional protocols of 1977. It is in article 1 paragraph 2 of Protocol I (which covers international conflicts), and the fourth paragraph of the preamble to Protocol II (which covers non-international conflicts). The wording in both is identical but slightly modified from the version used in the Hague Convention of 1907
In its commentary (Geneva 1987) the ICRC [International Committee of the Red Cross] states that although the Martens Clause is considered to be part of customary international law, the plenipotentiaries considered its inclusion appropriate because:
it is not possible for any codification to be complete at any given moment; thus the Martens clause prevents the assumption that anything which is not explicitly prohibited by the relevant treaties is therefore permitted. Secondly, it should be seen as a dynamic factor proclaiming the applicability of the principles mentioned regardless of subsequent developments of types of situation or technology.
Rupert Ticehurst, a Lecturer in Law, at King's College School of Law in London, writes that:
The problem faced by humanitarian lawyers is that there is no accepted interpretation of the Martens Clause. It is therefore subject to a variety of interpretations, both narrow and expansive. At its most restricted, the Clause serves as a reminder that customary international law continues to apply after the adoption of a treaty norm. A wider interpretation is that, as few international treaties relating to the laws of armed conflict are ever complete, the Clause provides that something which is not explicitly prohibited by a treaty is not ipso facto permitted. The widest interpretation is that conduct in armed conflicts is not only judged according to treaties and custom but also to the principles of international law referred to by the Clause.
The evidence that Ticehurst presents is that just as in 1899 there was a disagreement between the great powers and the minor powers that lead to the formulation of the Clause, so in 1996 a similar divergence of views exists between the declared nuclear powers and the non nuclear powers with the nuclear powers taking a narrow view of the Clause and the non nuclear powers taking a more expansive view.
Ticehurst concludes that:
... By refusing to ratify treaties or to consent to the development of corresponding customary norms, the powerful military States can control the content of the laws of armed conflict. Other States are helpless to prohibit certain technology possessed by the powerful military States. ... the Martens Clause establishes an objective means of determining natural law: the dictates of the public conscience. This makes the laws of armed conflict much richer, and permits the participation of all States in its development. The powerful military States have constantly opposed the influence of natural law on the laws of armed conflict even though these same States relied on natural law for the prosecutions at Nuremberg. The ICJ in its Advisory Opinion did not clarify the extent to which the Martens Clause permits notions of natural law to influence the development of the laws of armed conflict. Consequently, its correct interpretation remains unclear. The Opinion has, however, facilitated an important debate on this significant and frequently overlooked clause of the laws of armed conflict.
Several national and international courts have considered the Martens Clause when making their judgements. In none of these cases however have the laws of humanity or the dictates of the public conscience been recognised as new and independent right. The clause served rather as general statement for humanitarian principles as well as guideline to the understanding and interpretation of existing rules of international law.
Cross-referencing Posts #17 and #18 Re: The League of Nations and the Geneva Protocol at 4um Title: John McCain and Lindsey Graham criticise US-Russia deal on Syria
Also cross-referencing Post #20 there for more on the Geneva Protocol, Chemical Weapons Convention/CWC, Organisation for the Prohibition of Chemical Weapons/OPCW, Syria, Libya, etc. U.N. improvisations.