Command Responsibility and War Crimes: general discussion

Moderator's Note

This thread's title 'Was William T. Sherman a war criminal?' which covered this thread's discussion, but in August 2013 it became a wider topic and JMM99 suggested we retain this thread to discuss what is now called 'Command Responsibility and War Crimes: general discussion' (ends).

First, a disclaimer. Perhaps this thread belongs in the historical section but I thought it might fit here too. And I didn't find anything relevant when I searched Sherman's name here.

Was William T. Sherman a war criminal?

Neo-Confederates and Confederate apologists say so. But when the morality of bygone slave owners comes up the Neo-Confederates and Confederate apologists also like to point out that you should judge a man in his era and against the background of his cultrual norm and not by a later generation's standards. Don't we have to judge Sherman the same way?

Never mind how such actions would be preceived now. Or how insulted and violated someone's great-great grandma felt at the time her barn was burned.

Was it criminal at the time it happened?

but I'd love to discuss Sherman, the Lieber Code (GO 100), the Civil War and Reconstruction in terms of "War Crimes", etc.

(Upon limited reflection, I think the Historians forum might be the better place - since Law Enforcement is pretty much a current affairs forum. That call is up to David et al. (Thread moved by davidbfpo)

As to Sherman, why don't you put together a complaint vs WTS based on the "Neo-Confederates and Confederate apologists" viewpoint ? That doesn't seem to be your bottom line, but why not play devil's advocate.

BTW: ceased active private legal practice on 1 Jun, with only a couple of bramble bushes, closing books and final tax returns to complete. So, on 19 Sep and thereafter, every day should be a Saturday. ;)

Regards

Mike

Congrats on the well deserved retirement, Mike. Enjoy it...

Ken

To return to the thread with an answer from this dedicated Southerner; No, he wasn't. Nor were Nathan Bedford, John Hunt Morgan, Ben Grierson and dozens of less well known folks... ;)

War is war. :D

"warfare" is "warfare"; but as to the latter, the rules they do change - as to strategy (probably the least), tactics and "war crimes".

For example, one of our favorite generals (Subotai) employed the "wagon wheel test" to separate the "goats" from the "sheep" - too tall and your head was removed to put you in the eternal "sheep class". His problem (in occupying adverse territory) was that he had too few troops to "clear and hold" (much less "build"). So, all potential insurgents had to be removed.

What was "acceptable" to that non-Mongol would scarcely be "acceptable" today; but what is "acceptable" today has many variants (compare EU vs US and have fun). "Old Law" is not necessarily bad - especially where it had clarity.

Regards

Mike

Moved from law Enforcement to Historians and title amended, so subject is far clearer.

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Originally Posted by jmm99

"Old Law" is not necessarily bad - especially where it had clarity.

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who have clarity... ;)

All true. Nor is all change necessarily good, yet, it is. Onward and upward we go. :wry:

In a conversation the other day a person made the observation that "corruption" is taxation where formal taxation structures don't exist.

In that context, In the newly developing "war between nations" (as opposed to war between Kingdoms), where the will/morale and ability of the populace to support a war is so critical to achieving true defeat, deep raids targeting that aspect of the populace were "strategic bombing" before bombers existed.

Grant sent Sheridan into the Shenandoah on the same mission, though the history books seem to focus on Sherman; and all seem to miss that it was on Grant's orders to execute Grant's strategy that both these trusted lieutenants acted.

Grant had a comprehensive grasp on the realities of modern warfighting as it was developing around him, that great tactical leaders like Lee did not appear to grasp. I suspect that if Grant had focused solely on the defeat of Lee's army or the capture of Richmond that the war would have been much more likely to have devolved into a decades long insurgency.

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Originally Posted by Bob's World

Grant sent Sheridan into the Shenandoah on the same mission, though the history books seem to focus on Sherman; and all seem to miss that it was on Grant's orders to execute Grant's strategy that both these trusted lieutenants acted.

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Even as a good Southerner, the infrastructure and crop destruction during the March to the Sea make perfect sense militarily to me. I suppose one could color the pillaging of individual homes with a military brush by calling the actions punitive, but that would seem to butt up against the Union’s stated purpose of reintegrating the Confederate states (the behavior might well have been hard to police, but throwing up your hands and saying “Boys will be boys!” is still throwing up your hand) and is the part of the expedition which really sticks in my and many other Southerners’ craw (including the young lady I know who dropped her drawers and squatted down to piss on the Sherman Monument in Central Park during her senior class trip). Interesting that in historical memory of the Valley Campaigns that sort of behavior is not highlighted. That series of events seem to be remembered more as merciless than as rapacious.

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I suspect that if Grant had focused solely on the defeat of Lee's army or the capture of Richmond that the war would have been much more likely to have devolved into a decades long insurgency.

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Of a different type and scale than the decades long insurgency that did take place, you mean? ;)

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Originally Posted by jmm99

As to Sherman, why don't you put together a complaint vs WTS based on the "Neo-Confederates and Confederate apologists" viewpoint ?

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LOL, don't know where I'd begin. I suppose I could find something on the League of the South website to cut and paste but I'm not sure I'd want to do that.

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That doesn't seem to be your bottom line, but why not play devil's advocate.

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Because if I was advocating, I would advocate that he was not.

And I'd like to point something out to Southerners who think he is: what Sherman did to your Confederate ancestors wasn't too much different than what their ancestors a generation earlier did in campaigns against the Creek and Cherokee.

Whatever people believe they need to be consistent in their reasoning process.

own namesake's tribe. Much less what his northern neighbors did to the Kiowa, Pawnees and others as they moved west... :wry:

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Originally Posted by Rifleman

And I'd like to point something out to Southerners who think he is: what Sherman did to your Confederate ancestors wasn't too much different than what their ancestors a generation earlier did in campaigns against the Creek and Cherokee.

Whatever people believe they need to be consistent in their reasoning process.

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Unlikely to happen, we're all prone to bias and prejudice -- as well as flawed logic -- mine's more flawed than most but my bias (among other things) is tiny ... :D

This is a broad generalization, but:

History is written by the victors; so war criminals are only on the losing side.

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Originally Posted by Rifleman

Whatever people believe they need to be consistent in their reasoning process.

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A need most frequently honored in the breach, in my experience! :D

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And I'd like to point something out to Southerners who think he is: what Sherman did to your Confederate ancestors wasn't too much different than what their ancestors a generation earlier did in campaigns against the Creek and Cherokee.

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The actions weren’t too much different—the Sullivan Expedition has been called war on vegetables, after all—but the rules were that the rules were different when the adversaries were Indians (Wayne E. Lee has published a few papers on this topic). I’m not claiming that that wasn’t hypocrisy, but rather just trying to historicize things.

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Originally Posted by bourbon

This is a broad generalization, but:

History is written by the victors; so war criminals are only on the losing side.

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I was just going to post that very same thing.

"War criminal" is likely more of a liberal status for "loser" then any sort of strict legal catagorization.

Posted by Bob,

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I suspect that if Grant had focused solely on the defeat of Lee's army or the capture of Richmond that the war would have been much more likely to have devolved into a decades long insurgency.

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Have to agree to this statement, the only way to convince the South to surrender was too make the cost of continuing the conflict too much to bear. The strategy was appropriate, and while we can only speculate I suspect it reduced suffering the long run by limiting the duration of the conventional war.

As stated by ganulv, the insurgency did continue. The militants were the KKK, the subversives were various politicians who inacted laws (which the local police enforced violently) that continued to oppress the recently freed slaves until MLK led a mostly peaceful and successful revolt against legal discrimination, and much as our development efforts continue to fail in Afghanistan, or development efforts in the South largely failed due to resistance to industrialization and other factors.

The south now is becoming an economic powerhouse in its own right, and blacks in the south have considerable political power (at least in the larger urban areas). What facilitated that transformation? That might be helpful in determining how to facilitate social and economic change in foreign nations (since we seem determined to do so).

Taking it back to the topic, Sherman's march helped bring the war to an end, but it didn't solve the core issues that the war was fought over. In my opinion, if we desire to defeat the Taliban, then we need to carry the fight into their safehaven and make the price of continuing war too costly. If that is politically infeasible, then we probably need to change our policy and associated objectives. If you want the military to win, then you have to accept that war is war and endure the ugliness that comes with it.

Sherman was no war criminal, he was a soldier that executed his mission very effectively. A tactical mission tied to strategic ends.

Sherman operated under GO 100 - in pertinent part (paras 15 & 17 being determinative):

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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.

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.

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.

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.

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On the other hand, "war crimes" and associated death penalties were not limited to the "losing side":

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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.
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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.

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QED.

Regards

Mike

Jmm, thanks for getting the discussion back on course but you need to understand that professional military officers don’t like discussing war crimes…it makes them think and uncover cracks (actually gapping holes) in their strategic war fighting doctrine. Yes “warfighters”, that is a gauntlet you are staring at in front of your corfammed toes. In order to get this discussion going I will gladly defend Sherman and state he is not a war criminal (and maybe some of you will take five minutes to read the Lieber Code).
Sherman is not a war criminal because he followed and obeyed his Laws of War (the Lieber Code – GO 100). The Lieber Code, at just over 9000 words, is a thing of beauty that served the US military well through the Civil War, the Indian Wars, the Spanish American War and the Philippine American War. The Lieber Code not only established the protection for wounded, POWs, and civilians but also demonstrated little tolerance for treachery. Because it did not enable treachery, it provided for the successful occupation of the Confederate States at the end of the civil war. An interesting study is the occupation at the end of the Civil War compared to the botched occupation of Iraq. One of the guiding principles of the Lieber Code in Article 29 states “The more vigorously wars are pursued the better it is for humanity. Sharp wars are brief.” That principle is long forgotten by our senior military leadership.

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Originally Posted by Polarbear1605

One of the guiding principles of the Lieber Code in Article 29 states “The more vigorously wars are pursued the better it is for humanity. Sharp wars are brief.” That principle is long forgotten by our senior military leadership.

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Sherman applied not only the Lieber Code but also the prescription of a nominal enemy:

""War means fighting. The business of the soldier is to fight. Armies are not called out to dig trenches, to throw up breastworks, to live in camps, but to find the enemy and strike him; to invade his country, and do him all possible damage in the shortest possible time. This will involve great destruction of life and property while it lasts; but such a war will of necessity be of brief continuance, and so would be an economy of life and property in the end. To move swiftly, strike vigorously, and secure all the fruits of victory is the secret of successful war.""

As quoted in Stonewall Jackson and the American Civil War (1904) by George Francis Robert Henderson, Ch. 25 : The Soldier and the Man, p. 481

How do we view gradual escalation, allowing safe havens, pretending to fight with civil affairs and nation building while placing combat as a secondary objective, etc. looking through the lens of the Lieber Code? :D

Once again our egos destroy us, every officer out there wants to pretend he can come up with a new idea and redefine war and identify better ways to fight it, and the result is "forever wars" that cause untold suffering and forever damage the cultures/societies involved. Due to the duration of these half fought wars societies know nothing but war, peace is a foreign concept not easily embraced.

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Originally Posted by Polarbear1605

The Lieber Code, at just over 9000 words, is a thing of beauty that served the US military well through the Civil War, the Indian Wars, the Spanish American War and the Philippine American War. The Lieber Code not only established the protection for wounded, POWs, and civilians but also demonstrated little tolerance for treachery.

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At the risk of taking the discussion back off course… Laws are as good as individuals’ and societies’ willingness and ability to enforce them. In the context of the Indian Wars Sheridan’s refusal to call Major Baker to task for the 1870 attack on Heavy Runner’s camp is a glaring lapse in enforcement (I’m not necessarily saying Baker was a war criminal, but there was enough evidence available to Sheridan to suggest negligence at the least) and in the context of the Philippine-American War the water cure was used in spite of Lieber’s Article 16. One should of course acknowledge that both occurred amongst professional soldiers called upon to administer ill-conceived and poorly articulated policy. Plus ça change.

Well to remember that the Civil War was the "war between the states, and not the war within the states; and not attempt too much to draw parallels that apply to an internal insurgency such as is taking place in Afghanistan.

This may seem like an inconsequential distinction to many, but it is one of the most critical nature for me. As CvC wisely noted "The first, the supreme, the most far-reaching act of judgment that the statesman and commander have to make is to establish . . . the kind of war on which they are embarking.""

I don't normally quote or refer to Carl for insurgency, but do so here to point out that one must understand if they are in a war, or if they are in an insurgency. Afghanistan is insurgency; and it is my contention that to follow the principles of warfare in insurgency is folly. The principles of civil emergency apply, and best to remember that such emergencies are almost always well rooted in some fundamental failures of government, rather than failures of populace.

Now I realize that our military doctrine declares insurgency to be war ("complex war or warfare" actually), but that is what happens when one hands a problem to the military to resolve; they will tend to militarize it and couch it in the terms of their profession.

Our doctrine is a proverbial "soup sandwich" on such conflicts, and all of the "new" ingredients that experts have been tossing into the mix over the past 10 years to make it easier to digest have made it even more unpalatable. It is high time we toss the whole mess out and start from scratch and rebuild it one term at at time. I am sure we will find that there will be several left over terms that are far better left out of the mix.

Cheers!