Civil Wars North and South: Perspectives on Colombia from the US Civil War

Despite hundreds of thousands of casualties in the last sixty years alone, the Colombian government denies the existence of an insurgency within its borders.  Too weak to seize power, but too strong to defeat, the rebels have now been recognized by neighboring Venezuela as belligerent armies.  A review of the application of International Humanitarian Law to the U.S. Civil War provides a surprising perspective. 

Hundreds of thousands of Colombians in Bogotá and abroad participated in public demonstrations  against the FARC insurgency on February 4th.  Organized by internet chateadores and supporters of President Alvaro Uribe Velez, and heartily endorsed by the imprisoned Bloque Itagui, the call of the day is to ‘denounce the terrorists.’  It’s expected to be quite the opposite of a march for peace.

As often occurs, the propagandistic depiction of guerrilla terrorism is used to mobilize advocacy of an equally indiscriminate and destructive counter-terrorism.  There is a self-righteous condemnation on every conceivable ground of those who oppose the government, a total war against those openly associated with the insurgency, as well as a secret diplomacy that seeks to lure moderates into co-optation and support for the regime.Those caught in the middle will be asked to choose sides.

Colombia has endured an uninterrupted, low intensity civil war since about 1948.  Even before then, Colombia‘s history since its independence was one of civil war interrupted by periods of peace.  And yet, despite hundreds of thousands of casualties in the last sixty years alone, the government denies the existence of an insurgency within its borders.  Too weak to seize power, but too strong to defeat, the rebels have now been recognized by neighboring Venezuela as belligerent armies.  A review of the application of International Humanitarian Law to the U.S. Civil War provides a surprising perspective. 

Flashback to the U.S. Civil War

 “[T]he Federal Army has made no progress in subduing the Insurgent States. — I agree with you that the time is come for offering Mediation to the United States Government, with a view to the recognition of the Independence of the Confederates.  I agree further that in case of failure, we ought ourselves to recognize the Southern States, as an Independent State.”–-Letter from British Foreign Minister Lord John Russell to British Prime Minister Lord Palmerston, Sept. 17, 1862. 

British recognition of the Confederacy was never to materialize.  Only a month after this was written, and after news of the Northern victory at Antietam was received, and Lincoln‘s preliminary Emancipation Proclamation heard round the world, the British Cabinet "doubted the policy of moving, or moving at this time." One can hardly imagine what might have happened if the Cabinet had moved earlier.

Francis Lieber was a nineteenth-century liberal author of a textbook on international law.  A German immigrant, Lieber had been a slave-owner while teaching law at South Carolina College.  After attending Columbia College in New York, he became enlightened to the idea that slavery was immoral, and became an outspoken advocate for the Union cause.  Three of his sons fought in the US Civil War, on different sides.  One of them, a Confederate, died in the battle of Williamsburg.  

After the U.S. Supreme Court’s decision in The Prize Cases, recognizing the rebellion in the United States as a civil war, both sides attempted to apply the laws of war, but these rules were not well known.  Lieber’s article, "Guerrilla Parties Considered in Reference to the Laws and Usages of War," soon attracted the attention of the Union Army.  After revision by a board of army officers, it was published by the War Department in 1863 as General Orders No. 100, "Instructions for the Government of Armies of the United States in the Field."  Known as Lieber’s Code, it has been revised and renamed several times, including as the Hague Regulations of 1899 on the "Rules of Land Warfare."  In 1956 the U.S. Army renamed it the Law of Land Warfare, Basic Field Manual 27-10.  Lieber’s article was the first codification of what is now called International Humanitarian Law, or the laws of war.  It’s noteworthy that the first systematic classification of the laws of war was made in the context of a civil war. 

Lieber wrote of his “code:” I had no guide, no groundwork, no textbook.  I can assure you, as a friend that no counsellor of Justinian sat down at his task of the Digest with a deeper feeling of the gravity of his labor, than filled my breast in the laying down for the first time such a code, where nearly everything was floating.  Usage, history, reason, and conscientiousness, a sincere love of truth, justice and civilization, have been my guides; but of course the whole must be still imperfect.[1] 

One of the most basic principles of Lieber’s Civil War code was that enemy troops were to be taken prisoner, if possible, rather than killed.  Troops could refuse to give quarter "only by [order of] the commander in great straits making encumberment by prisoners impossible."[2] 

The rebels were to be treated as prisoners of war when captured.  The Code defined combatants in fairly broad terms.  Not only captured enemy soldiers, but civilians attached to the enemy army, high ranking officials of the enemy government, and diplomatic agents without a safe conduct could be legally taken as prisoners of war.[3]  Hostages, if taken, "rare in modern war," must be treated as prisoners of war, but chaplains, doctors, and nurses should be left free unless detained for special reasons, in which case they should be exchanged.[4]  The North had threatened to treat officers and crew of Confederate privateers as pirates, but this was never carried out, perhaps due to threats of retaliation.  It would have been illegal to treat them as pirates, since they were members of a belligerent force.   

Even had they engaged in piracy, though, the North would have been obligated to treat them as prisoners of war.  An interesting example occurred in 1885 in the District Court of New York, when Judge Brown held that a vessel of Colombian insurgents, captured on the high seas by the U.S. Navy and condemned for piracy, was engaged in "an expedition technically piratical" when captured.  The judge released the vessel under the mistaken belief that the Secretary of State had recognized the belligerency of the Colombian insurgents.  U.S. v. Ambrose Light, 25 Fed. 408 (1885). 

Lieber’s Code provided for, but did not require, the exchange of prisoners.  The North and South did exchange prisoners on the initiative of President Lincoln, although the North agreed to these exchanges rarely, taking advantage of the South’s manpower shortage.  Deserters, if recaptured, could suffer death.[5]  An uprising by the inhabitants of an occupied area constituted a crime, and could be punished in the courts martial of the occupier.[6]   Scouts in disguise, armed prowlers, war rebels in occupied territory; spies, traitors, and war traitors; voluntary guides, and guides proven to have intentionally misled could be punished by death if caught in the act.[7]

The placing of bounties on the heads of enemy leaders was considered a war crime. "Civilized nations look with horror upon offers of rewards for the assassination of enemies as relapses into barbarism."[8] 

Lieber’s Code, as applied in the Civil War, also recognized the principles of the laws of war concerning property.  Public property of the enemy could be appropriated.  "Strictly private property" would be protected in occupied territory, but the "victorious invader" retained the right to tax the people or their property and to appropriate property such as homes, land, boats, and even churches for temporary and military uses.[9]   

The U.S. Civil War resulted in numerous court battles over the ownership of property after the war, and reparations to be paid for property taken by one of the belligerents.  It was held after the war, in courts in the United States, Great Britain, and international arbitral tribunals, that the United States was not, as a rule, responsible to foreign states for property losses or other injuries to their nationals caused by the Confederates, even if the foreign state had not recognized the belligerency of the South.  In this way, the North had limited its civil liability through the recognition of belligerent status to the Confederacy. 

By Civil War Standards, Venezuela’s Recognition was a Hostile Act 

"Unless justified by necessity, [the recognition of belligerency by a third state] is always and justly regarded as an unfriendly act and a gratuitous demonstration of moral support to the rebellion." –General Grant’s message to the U.S. Congress, December 7, 1875. 

Venezuela‘s recognition of the belligerent status of Colombian FARC and ELN rebels indicates, at the very least, that rebels found in Venezuela would not generally be extraditable if they had not violated the laws of war.  For extradition to occur, the crime must be a crime in both countries.  This is called the principle of dual criminality.  Lawful acts of war, when committed by belligerents, are not crimes. 

Secondly, as noted before (See, "Bolivar’s Sword: Venezuelan Recognition of the Colombian Insurgency," Jan 20, 2008), the formal recognition of belligerent status to Colombian guerrillas opens the door for Venezuelan diplomacy with the government and the rebels on equal terms.  In some respects, this is what Venezuelan President Hugo Chavez is doing now, as unofficial mediator of Colombia‘s negotiations with the FARC. 

Third, and what should be obvious after reading this article, is that Venezuela has provided the FARC with a forum to argue for the legitimacy of most of its practices, which are condemned all over the world, yet do not violate the laws of war, at least as conceived by Francis Lieber and applied in the US Civil War.  If the FARC were a belligerent force, it would have the legal right to tax the part of the country it occupies.  It could imprison those who did not pay the tax.  It would have the right to detain high ranking government officials, and diplomats traveling through its territory without safe conducts, as prisoners of war.  It would have the right to execute captured intelligence agents.  A prisoner exchange would be a perfectly reasonable thing to propose.  None of this would be considered hostage-taking. 

Even the FARC’s taxing of coca growers within its territory would not be a violation of the laws of war.  Presuming the FARC were a belligerent occupying force, it could legalize coca.  Coca leaves are already legal in many countries in South America, most notably Bolivia and Peru.  Bolivian President Evo Morales was elected by coca growers, and he has at various times proposed legalizing cocaine.  Presumably, Bolivia has not done so because it does not want to be isolated internationally.  The point is, growing coca or taxing coca growers is not a war crime. 

On the other hand, the government’s placing of "dead or alive" bounties on the heads of guerrilla leaders, in the words of Francis Lieber, is a relapse into barbarism. 

As a neutral state, Venezuela is under no obligation to assist the government of Colombia in its war against the insurgents. In fact, it is prohibited from doing so. This is quite removed from the ordinary cooperation between states in matters of law enforcement.  And, to the dismay of many observers, it could indicate a willingness on the part of Venezuela to support the insurgents, in some way short of illegal intervention.

Colombia follows the lead of the United States, which in the case of third world insurgencies, equates revolutionary violence with terrorism. Any act by the revolutionaries is inherently terrorist.  Any response by the established government is inherently counter-terrorist.  But it’s hypocritical and moralistic to ask revolutionary groups to adhere to higher moral standards than those accepted by states.  It is also unrealistic and unjust to insist that victims of state terror acquiesce in their repression. 

Respect for the principle of self-determination of people, and the duty of states to develop self-government in their non-self-governing territories are basic tenets of the United Nations Charter.  When self-rule is denied, the result can be violent revolution.  This is the basic problem in Colombia, not terrorism. 

Paul Wolf is a lawyer in Washington, D.C. practicing international human rights law.  Permission to reprint this article is granted.  Much of it is based on the scholarly research of Richard Falk.

[1] Richard Falk, ed., The International Law of Civil War (Johns Hopkins Press, Baltimore, US, 1971),citing Harley, Francis Lieber, p 150.  Much of this article was derived from the scholarly works of Dr. Falk.

2. Id., Article 60.

3. General Orders No. 100, Articles 49, 50.

4. Id., Articles 53, 54, 55.

5. Id., Article 48.

6. Id., Article 52.

7. Id., Articles 83-85, 88-92, 95-97.

8. Id., Article 148.

9. Id., Article 37.