War Is Hell, But Even Hell Has Rules: A Closer Look at Permissible Treatment of Civilians Per the Lieber Code

This post is part of a series.

A previous post[1] examined how the Lieber Code[2] seemed to bend towards making war as civilized as possible, as illustrated by its several articles explicitly protecting civilians and their property.[3] The question then was raised how, in light of that legally mandated protection, could the war see so many examples of harsh military treatment towards civilians. A deeper examination of the Code provides answers.

Article 21.

The citizen or native of a hostile country is … an enemy, as one of the constituents of the hostile state or nation, and as such is subjected to the hardships of the war (emphasis supplied). 

Comment: This article sheds light on the Lieber Code’s true perspective on civilians. It justifies the making of war upon civilians because they are the “enemy.” In that regard, the Code rejects the approach that had been urged by Maj. Gen. George McClellan, that the war “…should be conducted upon the highest principles known to Christian civilization… It should not be at all a war upon population, but against armed forces and political organization.”[4]

Article 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 (emphasis supplied). 

Comment: Here we begin to see the Lieber Code’s harshness; it is acceptable to starve even unarmed belligerents in pursuit of victory. Since civilians are included within the definition of the “enemy,” they presumably are encompassed within the definition of unarmed belligerent. Thus, William T. Sherman’s foraging and destruction of civilian foodstuffs during his March to the Sea, and Sheridan’s 1864 Shenandoah Valley “Burning” campaign—to the extent that those operations could be charged with risking starvation conditions—stand justified under the terms of the Code.[5]

Article 29.

Modern times are distinguished from earlier ages by the existence … 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 (emphasis supplied). 

Comment:  This Article implicitly justifies harsh measures in war, as a proper means to a good end, i.e., the speedy end to the war. Stated differently, the end (peace) justifies the means.

Article 52. 

… If …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 (emphasis supplied).

Comment: Despite being characterized as the enemy, the Lieber Code asserts that citizens may not fight back once an area is occupied. According to Lieber, there must be no what we would call today “resistance fighters.”[6]

Article 84. 

Armed prowlers, by whatever names they may be called,[7] 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 (emphasis supplied).

Article 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 (emphasis supplied).

Comment: Again, civilians are not permitted under any circumstances to resist U.S. occupation forces. Indeed, such persons are denied POW status and may be executed.

Article 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 with him (emphasis supplied).

Article 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 (emphasis supplied).

Article 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 (emphasis supplied).

Comment: Again, the Code absolutely forbids civilian resistance of any type to a U.S. occupying force. Indeed, these Articles theoretically would condemn as “war-traitors” CSA citizens who communicate with distant family members any details of their occupation, perhaps even if simply complaining about the behavior of the occupying force. See also Article 90.

These articles (among others) also show the Lieber Code’s shockingly frequent threat of death levied against uncooperative enemy civilians.

Article 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 (emphasis supplied).

Comment:  Here is another of the many occasions the Code calls for death to be imposed upon civilians. Even those locals who simply serve as guides for their own forces operating in the locals’ home territory are subject to capital punishment. Thus, the penalty of death would apply both to the local Virginia farmer who had helped guide James Longstreet’s men at Second Manassas and the local hunter who assisted Stonewall Jackson on his flanking march at Chancellorsville.

Conversely, Article 95 would appear to justify Confederate execution of any local African Americans who helped guide U.S. forces in the South. Moreover, in a broader sense the Lieber Code’s claim that the accepted laws of war (which the Code claimed to reflect) called for death for any civilians who resisted an occupying force would similarly justify death imposed on any African American resistance in support of the U.S. army. It is doubtful that Lieber intended any such results, yet the language of his Code led to these conclusions.

Article 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…

The commander will throw the burden of the war … on the disloyal citizens…; 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 have the right to decide (emphasis supplied).

Comment:  Not only could loyalty oaths be imposed on Confederate civilians, and those who refused to comply punished, the local commander is authorized to decide that such oaths would be unreliable. In that case, the commander may simply expel perceived disloyal noncombatants. Thus, the Code justified Maj. Gen. John Pope’s orders targeting civilians in Virginia for expulsion, and even Maj. Gen. Thomas Ewing’s infamous General Order No. 11, forcing thousands of Missouri residents to abandon their homes.[8]

Summary: These Articles reveal that, despite the benevolent general language we saw before in certain parts of the Lieber Code, in fact civilians within the borders of the Confederacy are expressly considered the enemy, to be treated as such. These provisions also make clear that when in doubt, the hard hand of war should fall on disloyal citizens. And in multiple scenarios that hard hand could impose death. We begin to gain a clearer perspective on Lieber’s Code.

 

[1] War Is Hell, But Even Hell Has Rules: Protecting the Vulnerable Per the Lieber Code.

[2] The War of the Rebellion: A Compilation of The Official Records of The Union and Confederate Armies, Series III, Vol. 3 (U.S. Government Printing Office, Washington, D.C., 1880 – 1901), pp. 148 – 164.

[3] See Code, Articles 22, 23, 37, 38, 44.

[4] “General McClellan Letter to President Lincoln on His Evacuation from the Peninsula Campaign,” The Kolbe Foundation, https://kolbefoundation.org/gbookswebsite/studentlibrary/americanpapers/civilwar/mcclellanletterlincoln.htm.

[5] For a recent ECW description of Sheridan’s devastation, see Aaron Siever, “Ashes in the Breadbasket: Hard War in the Shenandoah Valley,” ECW Post, May 21, 2026, https://emergingcivilwar.com/2026/05/21/ashes-in-the-breadbasket-hard-war-in-the-shenandoah-valley/.

[6] The Lieber Code’s rule that all resistance fighters were subject to execution has been rejected by modern laws of war.  Richard Salomon, “Occupation Resistance, War-Rebels, and The Lieber Code,” Articles of War (Lieber Institute, West Point, Dec 3, 2021), https://lieber.westpoint.edu/occupation-resistance-war-rebels-lieber-code/; Adam Roberts, “Resistance to Military Occupation: An Enduring Problem in International Law,” AJIL Unbound. 2017;111:45-50. doi:10.1017/aju.2017.22.

[7] By “armed prowler,” Lieber was referring to what were commonly called “bushwhackers.” Lieber considered such combatants “simple assassins.” Francis Lieber, Guerrilla Parties:  Considered with Reference to the Laws and Usages of War (D. Van Nostrand, New York, 1862), p. 20.

[8] John J. Hennessy, Return to Bull Run: The Campaign and Battle of Second Manassas (New York, Simon & Shuster, 1994), pp. 14 – 19; Daniel E. Sutherland, “Abraham Lincoln, John Pope, and the Origins of Total War,” The Journal of Military History, Vol. 56, No. 4, pp. 577 – 578, 583 (Lexington, VA, Oct. 1, 1992); William Fischer, Jr., “General Orders No. 11, A State Divided: The Civil War in Missouri,” The Historical Marker Database, https://www.hmdb.org/m.asp?m=54013.