“So it is to the United States of North America and to President Lincoln that belongs the honor of having taken the initiative in defining with precision the customs and laws of war. This first official attempt to codify the customs of war and to collect in a code the rule binding upon military forces has notably contributed to impress the character of humanity upon the conduct of the northern states in the course of that war.”
F. de Martens, “Précis du Droit des Gens moderne de l’Euorpe,” 1879
Imagine it is June 1862; the war rages all around. Soldiers fall in battle; some severely wounded, and the enemy takes others as prisoners. Now fast forward to a couple of days later, those soldiers traveled either on foot or by train to where they will spend their time as prisoners of war. They walk up to the gates. They walk in; this is their hell on earth. Depending on if the soldiers are Union or Confederate will determine their prison. Salisbury Prison in North Carolina is likely the place a Union soldier would end up. Alton prison in Illinois might be the temporary home of Confederate soldiers. Both prisons could safely hold between 1750 to 2500 prisoners. However, by the time both closed, they far exceeded their capacity. Conditions varied at both camps, with Salisbury prison initially having more favorable conditions. Alton, on the other hand, was quite different. The extreme weather conditions from hot summers to frigid winters led to 300 men dying from smallpox in the winter of 1862 and the spring of 1863.
As the war progressed, there were more than 150 prison camps across the North and South. Prisoner exchanges had stopped, the camps became overcrowded, and diseases ran rampant throughout them. Food supplies were in shortage, especially in the South, where the blockade prevented the transportation of needed supplies. Camps in the North and South lacked adequate shelter, with some, such as Andersonville, failing to provide it. Fresh water and sanitation continued to be problematic in some areas. Of the roughly 400,000 men held as prisoners of war, approximately 56,000 died in captivity.
When the Civil War started in April 1861, there were no specific rules or regulations on dealing with prisoners of war. The Articles of 1806, under which the Union army operated, did not contain any specific language or guidelines on the definitions, treatment, or conditions determining who qualified as prisoners. Nor did it address the treatment they were to receive or the provision of clothing, shelter, food, or medical care.
Out of pressure on President Abraham Lincoln to have an official stance on exchanging prisoners, Union Major General John A. Dix and Confederate Major General Daniel Harvey Hill met to create an unofficial agreement. Signed on July 22, 1862, the Dix-Hill Cartel provided for an even exchange of prisoners based on rank. Though it was well-intentioned, inconsistencies plagued it from the start and ended soon after.
The need for a comprehensive set of rules and laws for war became evident. Nevertheless, who was qualified to create such rules? The army needed someone who understood the concept of a total and just war. Someone who understood not only traditional rules but one who could modernize the rules as war changed. Enter Dr. Francis Lieber. Lieber experienced war as a young man, having fought at Waterloo and Ligny against Napoleon in 1817. He and General Halleck had corresponded for years about the rules and laws of war. So when the need arose to have definitive answers on handling issues such as guerilla warfare, spies, parole, and prisoners of war, Halleck turned to Lieber and appointed him to a special board comprised of Lieber and four army officers. Lieber completed his project within a couple of months. Lincoln approved it and issued it on April 24, 1863, to the Union Army as General Orders No. 100.
Many historians and military leaders look to Lieber’s Code as a law of military necessity, yet Section III holds the most critical aspect of this code. Within this section lies the definition of a prisoner of war, and it details essential facts such as how to treat them, concerns with medical care, and basic provisions such as food, clothing, and shelter. It addressed the means of exchanging prisoners and, most notably, was retaliation an acceptable punishment. It was the first time in modern United States history that the Articles of War now had provisions for the appropriate treatment of prisoners of war.
Nevertheless, some questions have not received enough attention. Would the Confederacy respond to the revisions of the Articles of War? Would they recognize and utilize the new laws in their treatment of prisoners? It is widely recognized that the Confederate prison camps, such as Andersonville, did not operate under the Lieber Code, yet was there a possibility of the Confederacy ever doing so? What motivation could Lieber have in creating the newly revised rules? What role, if any, does morality play in war? In addition to these questions, a further question remains, what was the legacy of Lieber’s Code? What impact would it have not only on the way the United States military-operated, but would international military law find common ground with it? Indeed, many international military laws regarding prisoners of war claimed as their foundational document that inspired their final product as Dr. Francis Lieber and his Code.
My research is a work in progress. I started researching prisoners of war nearly twenty years ago when I discovered family members who were prisoners of war during the Civil War. Their stories are what inspired me to learn all that I can about the rules and laws governing prison camps and the treatment of prisoners. I wanted to know why one family member never returned home, and the how and why another managed to return. Most importantly, I want to know more about the man who created these laws, to know why and how he selected the positions that ultimately became the defining laws. There is still more to be discovered about Lieber, the committee that aided him in creating the newly revised laws, the way the Union army implemented and put into practice the laws, the opinion of the Confederacy, and its legacy.
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