Early in the 19th century, Chief Justice Marshall noted that sovereign nations had the right to confiscate property of an enemy during armed conflict, but the Lieber Code of 1863, formally known as General Order No. 100, reversed that notion by incorporating the principle that monuments, places of worship and works of art must be spared from destruction in times of war. The code, commissioned by President Abraham Lincoln during the Civil War, was published as a pamphlet that could be carried by Union soldiers. Written by Professor Francis Lieber of Columbia College (now Columbia University), it provided that “classical works of art, libraries, scientific collections, or precious instruments . . . must be secured against all avoidable injury” (Article 35).
The Lieber Code also identified military necessity for the first time as a general legal principle whose purpose was to limit violence. Article 14 of the Lieber Code states, “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,” i.e., military necessity permits only that degree of force necessary to defeat the enemy. Although some have pointed to military necessity as justification for the destruction of an enemy’s property, e.g. defendants in the Nuremberg trials following WWII, it does not justify the willful or wanton destruction, not justified by imperative military necessity.
The Brussels Declaration of 1874, as well as the Hague Regulations on the Laws and Customs of War on Land of 1899 and 1907 (Link to the 1899 and 1907 page), are partially based on the Lieber Code and retain the principle that cultural property should be protected in times of armed conflict.
See in particular, Article II Sections 34-36 where the protection of cultural property is mandated.
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