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.
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.
From the Wikipedia link above for francs-tireurs:
French for "free shooters" [also translates as Mavericks]
used to describe irregular military formations deployed by France during the early stages of the Franco-Prussian War (1870–71). The term was revived and used by partisans to name two major French Resistance movements set up to fight against the Germans during World War II.
It is sometimes used to refer more generally to guerrilla fighters who operate outside the laws of war.
During the wars of the French Revolution, a franc-tireur was a member of a corps of light infantry organized separately from the regular army. The Spanish word francotirador and the Portuguese word franco-atirador, meaning sharpshooter or sniper, are derived from the word franc-tireur.
Francs-tireurs were an outgrowth of rifle clubs or unofficial military societies formed in the east of France at the time of the Luxembourg crisis of 1867 (see History of Luxembourg). The members were chiefly concerned with the practice of rifle-shooting. In case of war, they were expected to act as militia [milice/miliciens] or light troops. They wore no uniforms, but they armed themselves with the best existing rifles, and elected their own officers.
In an article in the September 13, 1919 issue of Illustrated London News, the writer G. K. Chesterton responded to [German General Erich] Ludendorff's book by remarking:
... What is a "franc-tireur"? A "franc-tireur" is a free man, who fights to defend his own farm or family against foreign aggressors, but who does not happen to possess certain badges and articles of clothing catalogued by Prussia in 1870. In other words, a "franc-tireur" is you or I or any other healthy man who found himself, when attacked, in accidental possession of a gun or pistol, and not in accidental possession of a particular cap or a particular pair of trousers.
Before the two world wars, the term franc-tireur was sometimes used for an armed fighter who, if captured, was not necessarily entitled to prisoner of war status. An issue of disagreement at the 1899 Hague Conference, the controversy generated the Martens Clause. The Martens Clause was introduced as a compromise 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.
Two major [French] Résistance groups adopted the name Franc-Tireur during the German occupation of France during the Second World War. The first to be established was the Franc-Tireur (movement), founded in Lyons in 1940. The second was Francs-tireurs partisans [FTP aka National Front (French Resistance) - faction established as the military branch of the French Communist Party (PCF).]
After World War II, during the Hostages Trial (or, officially, United States v. Wilhelm List, et al., 11 Tr. of War Crim. Bef. Nuremberg Mil. Trib. 1248 (1948)), the seventh of the Nuremberg Trials, the tribunal found that, on the question of partisans, according to the then-current laws of war (the Hague Convention No. IV from 1907), the partisan fighters in southeast Europe could not be considered lawful belligerents under Article 1 of said convention.
The Geneva Conventions established new protocols, namely, according to Article 4 of the Third Geneva Convention of 1949, francs-tireurs are entitled to prisoner-of-war status provided that they are commanded by a person responsible for his subordinates, have a fixed distinctive sign recognizable at a distance, carry arms openly, and conduct their operations in accordance with the laws and customs of war.
Edited to include additional translation at line 2.