General Order 100 (the Lieber Code)
Prior to the commencement of hostilities in the Civil War there were no written
Rules for the way in which a army was to conduct war.† The First Geneva Convention would not happen until late 1863.† President Lincoln directed that Francis Lieber, a professor of law, draft a paper effecting how the Union Army should conduct itself during time of war.† Mr. Lieberís rules of conduct for war became General Order 100, accepted by President Lincoln and issued by the Adjutant General on April 24, 1863.† While this General Order affected only the United States, it has become, what some scholars believe, the cornerstone for the internationally accepted Geneva Convention rules.†
† Historians who have viewed the Civil War through the actions of its generals have hotly debated the Lieber Code, as it has also been called.† Two such debates/articles that bare merit are: GENERAL WILLIAM T. SHERMAN: WOULD THE GEORGIA CAMPAIGNS OF THE FIRST COMMANDER OF THE MODERN ERA COMPLY WITH CURRENT LAW OF WAR STANDARDS by Thomas G. Robisch, and THE HISTORY OF THE LAW OF WAR ON LAND by Howard S. Levie.† As you read the rules established by Mr. Lieber, I will leave you to debate and contemplate how generals, on both sides, adhered to, ignored or interpreted them. Whatever your decision, a true scholar of this bloody conflict should be aware of the rules under which it was fought.† Here now is the LIEBER CODE:
INSTRUCTIONS FOR THE GOVERNMENT OF ARMIES OF THE UNITED STATES IN THE FIELD
The text below is reprinted from the edition of the United States
Government Printing Office of 1898; and reprinted in Schindler & Toman,
eds., The Laws of Armed Conflicts.
Instructions for the Government of Armies of the United States in the
Field, prepared by Francis Lieber, LL.D., Originally Issued as General
Orders No. 100, Adjutant General's Office, 1863, Washington 1898:
Government Printing Office.
††††††††††††††††††††† TABLE OF CONTENTS
Section I Martial Law - Military jurisdiction -
††††† Military necessity - Retaliation.†††††††††††††††††††††††††† 1-30
Section II. Public and private property of the enemy - Pro-
†††† tection of persons, and especially of women, of religion,
†††† the arts and sciences - Punishment of crimes against the
†††† inhabitants of hostile countries.††††††††††††††††††††††††††† 31-47
Section III. Deserters - Prisoners of war - Hostages - Booty
†††† on the battlefield.††††††††††††††††††††††††††††††††††††††††† 48-80
Section IV. Partisans - Armed enemies not belonging to the
†††† hostile army - Scouts- Armed prowlers - War-rebels.††††††††† 81-85
Section V. Safe-conduct - Spies - War-traitors - Captured
†††† messengers - Abuse of the flag of truce.†††††††††††††††††††† 86-104
Section VI. Exchange of prisoners - Flags of truce -
††††† Flags of protection†††††††††††††††††††††††††††††††††††††††† 105-118
Section VII. The Parole†††††††††††††††††††††††††††††††††††††††††† 119-134
Section VIII. Armistice - Capitulation†††††††††††††††† †††††††††††135-147
Section IX. Assassination†††††††††††††††††††††††††††††††††††††††† 148
Section X. Insurrection - Civil War - Rebellion†††††††††††††††††† 149-157
††††††††††††††††††††††††††††† * * *
†††††††††††††††††††††††††††† SECTION I
Martial Law - Military jurisdiction - Military necessity - Retaliation
Article 1. 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.
Art. 2. 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.
Art. 3. 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.
Art. 4. 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.
Art. 5. 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.
Art. 6. 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.
Art. 7. Martial Law extends to property, and to persons, whether they are
subjects of the enemy or aliens to that government.
Art. 8. 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.
Art. 9. 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.
Art. 10. 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.
Art. 11. 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.
Art. 12. 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.
Art. 13. 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.
Art. 14. 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.
Art. 15. 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.
Art. 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.
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.
Art. 17. 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.
Art. 18. When a commander of a besieged 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.
Art. 19. 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.
Art. 20. 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, suffer, advance and
retrograde together, in peace and in war.
Art. 21. 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.
Art. 22. 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
Art. 23. 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.
Art. 24. 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
disruption of family ties. Protection was, and still is with uncivilized
people, the exception.
Art. 25. 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.
Art. 26. 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 everyone 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 district or country, at the peril of their lives.
Art. 27. 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
Art. 28. 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.
Art. 29. 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.
Art. 30. 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.
Art. 31. 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.
Art. 32. 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
The commander of the army must leave it to the ultimate treaty of peace to
settle the permanency of this change.
Art. 33. 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.
Art. 34. 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
31; but it may be taxed or used when the public service may require it.
Art. 35. 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.
Art. 36. 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.
Art. 37. 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
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
Art. 38. 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.
Art. 39. 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.
Art. 40. 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.
Art. 41. 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.
Art. 42. 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.
Art. 43. 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.
Art. 44. 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.
Art. 45. 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
Art. 46. 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.
Art. 47. 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 battle-field.
Art. 48. 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.
Art. 49. 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.
Art. 50. 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 hostile reigning 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.
Art. 51. 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.
Art. 52. 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.
Art. 53. 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.
Art. 54. 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.
Art. 55. If a hostage is accepted, he is treated like a prisoner of war,
according to rank and condition, as circumstances may admit.
Art. 56. 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.
Art. 57. 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.
Art. 58. 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.
Art. 59. 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.
Art. 60. 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
Art. 61. Troops that give no quarter have no right to kill enemies already
disabled on the ground, or prisoners captured by other troops.
Art. 62. All troops of the enemy known or discovered to give no quarter in
general, or to any portion of the army, receive none.
Art. 63. Troops who fight in the uniform of their enemies, without any
plain, striking, and uniform mark of distinction of their own, can expect
Art. 64. 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.
Art. 65. 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.
Art. 66. 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.
Art. 67. 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.
Art. 68. 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.
Art. 69. 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.
Art. 70. 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.
Art.71. 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.
Art. 72. 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.
Art. 73. 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 or
approbation of his humane treatment of prisoners before his capture. The
captured officer to whom they may be restored can not wear them during
Art. 74. 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.
Art. 75. 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.
Art. 76. 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.
Art. 77. 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.
Art. 78. 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.
Art. 79. Every captured wounded enemy shall be medically treated, according
to the ability of the medical staff.
Art. 80. 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
††††††††††††††††††††††††††††† SECTION IV
†††††† Partisans - Armed enemies not belonging to the hostile army -
††††††††††††††† Scouts - Armed prowlers - War-rebels
Art. 81. 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.
Art. 82. 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.
Art. 83. 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.
Art. 84. 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.
Art. 85. 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 -
††††††††††††††††††††† Abuse of the flag of truce
Art. 86. 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
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 government, or by the highest military authority.
Contraventions of this rule are highly punishable.
Art. 87. 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.
Art. 88. A spy is a person who secretly, in disguise or under false
pretense, seeks information with the intention of communicating it to the
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.
Art. 89. 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.
Art. 90. 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
Art.91. 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.
Art. 92. 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.
Art. 93. All armies in the field stand in need of guides, and impress them
if they cannot obtain them otherwise.
Art. 94. No person having been forced by the enemy to serve as guide is
punishable for having done so.
Art. 95. 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.
Art. 96. A citizen serving voluntarily as a guide against his own country
commits treason, and will be dealt with according to the law of his
Art. 97. Guides, when it is clearly proved that they have misled
intentionally, may be put to death.
Art. 98. AU 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
Art. 99. 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.
Art. 100. 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.
Art. 101. 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 difficult to
guard against them.
Art. 102. 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.
Art. 103. 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.
Art. 104. 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 - Flags of protection
Art. 105. 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.
Art. 106. 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.
Art. 107. 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
Art. 108. 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
Such arrangement, however, requires the sanction of the highest authority.
Art. 109. 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
A cartel is voidable as soon as either party has violated it.
Art. 110. 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.
Art. 111. 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.
Art. 112. 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.
Art. 113. If the bearer of a flag of truce, presenting himself during an
engagement, is killed or wounded, it furnishes no ground of complaint
Art. 114. 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.
Art. 115. It is customary to designate by certain flags (usually yellow)
the hospitals in places which are shelled, so that the besieging enemy may
avoid firing on them. The same has been done in battles, when hospitals are
situated within the field of the engagement.
Art. 116. 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
Art. 117. 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.
Art. 118. 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
Art. 119. Prisoners of war may be released from captivity by exchange, and,
under certain circumstances, also by parole.
Art. 120. 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
Art. 121. The pledge of the parole is always an individual, but not a
Art. 122. 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.
Art. 123. Release of prisoners of war by exchange is the general rule;
release by parole is the exception.
Art. 124. 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
Art. 125. 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.
Art. 126. 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.
Art. 127. 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.
Art. 128. 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.
Art. 129. 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
Art. 130. 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.
Art. 131. 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.
Art. 132. 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.
Art. 133. 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.
Art. 134. 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
Art. 135. 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.
Art. 136. If an armistice be declared, without conditions, it extends no
further than to require a total cessation of hostilities along the front of
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.
Art. 137. An armistice may be general, and valid for all points and 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.
Art. 138. 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
Art. 139. 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.
Art. 140. 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.
Art. 141. 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
Art. 142. 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
Art. 143. 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
besieged 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.
Art. 144. 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.
Art. 145. When an armistice is clearly broken by one of the parties, the
other party is released from all obligation to observe it.
Art. 146. 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
Art. 147. 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
Art. 148. 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
Art. 149. 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.
Art. 150. 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 portions of the state are
contiguous to those containing the seat of government.
Art. 151. 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.
Art. 152. When humanity induces the adoption of the rules of regular war to
ward rebels, whether the adoption is partial or entire, it does in no way
whatever imply a partial or complete acknowledgement 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.
Art. 153. 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.
Art. 154. 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.
Art. 155. 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
Art. 156. 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
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
Whether it is expedient to do so, and whether reliance can be placed upon
such oaths, the commander or his government have the right to decide.
Art. 157. 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.