"Was General X a War Criminal"
Hi Steve,
I agree. I'd suggest using this thread. The events in the Indian Wars and P.I. were subject to the Lieber Code and Articles of War - discussed above in this thread. To the extent that the military practices were "scorched earth", they fit the concept of "Total War" we've been discussing.
I'd suggest a change of the thread title to the title I've used for this post. If a mod would feel so inclined ...
I used "General X" simply to emphasize that the issue is one of command responsibility. However, the amended thread could include lower grade field officers. For example, you, I and Polarbear1605 had a pretty good conversation about Tony Waller (then a Maj.) being guilty or not guilty of war crimes.
Command responsibility became a bigger issue after WWII - e.g., Gens. Yama$hita and Homma; and continues to be on the front burner of the "ICRC Community".
So, if you can take a little break from hooking those huge bass :), frame an indictment of Howlin' Jake Smith.
Regards
Mike
Lawyers are (should be) meaningless in this game
for two reasons:
1. Whether or not to do something (commission), or not do something (omission), is a decision that has to be made by the military officer, or by the civilian official (war crimes applies to the entire chain of command, military and civilian), because that officer or official is the one who will get fried.
2. Lawyers' opinions in this area are not reliable because they vary all over the map - e.g., consider the range of lawyerly opinions about the drone strikes, and the range of opinions by investigators regarding the material facts.
BTW: I'm a retired gentleman, not the SWC lawyer; and I'd like to see some comments (and research) from others. The rest of your post was OK in that regard. I can do without $hit like: "You're the lawyer." No, I'm not. I also have no particular personal interest in prosecuting or defending Smith.
Regards
Mike
PS: later, I'll add a couple of black-letter bits, only as background.
1 Attachment(s)
ICRC Customary IHL - War Crimes
If you are prosecuted for war crimes, your prosecution will hinge on the rules which you can find in ICRC Customary IHL, Chapter 43 - Individual Responsibility.
You will not, of course, be prosecuted by the ICRC - but in a military or civilian court of your own country, another country claiming universal jurisdiction or an international court. These are basically pro-prosecution rules; so any competent prosecutor will use them or something close to them. According to the ICRC, they are rules set by Customary International Humanitarian Law; and, thus, binding globally.
The quote below has the link to each rule's webpage, and the black-letter rule. In addition, for each rule, the webpage includes an explanatory commentary (of several pages, plus footnotes). The commentaries include various headings - e.g. : Summary of Rule, International armed conflicts, Non-international armed conflicts, Interpretion, Forms of individual criminal responsibility, Individual civil liability, Mitigation of punishment, Manifestly unlawful orders, Unlawful orders, Armed opposition groups, Footnotes. You really have to read all the commentaries to understand the charges against you.
Our troops are required to correctly apply these rules to the various situations covered by the commentaries - and, if they don't happen to have a lawyer at their elbows, tough $hit (ignorance of the law is not a very good defense). I don't think I'm asking too much of SWC members to learn the same rules and commentaries; not freeze like deer in the headlights when legal issues come up; and at least attempt some historical re-enactment as a soldier of that time - who probably (with some exceptions) "had little or no capacity to determine whether any of these actions or events were or were not compliant with the codes and practices of that time."
In re Yama$hita, 327 U.S. 1 (1946), is the classic SCOTUS case on command responsibility. The dissent of Frank Murphy - on the merits of prosecuting Yama$hita - is worth the read; keeping in mind that it was written by a 50-something reserve infantry officer who offered to resign from the Court in exchange for a rifle company in WWII combat. It also has a discussion of the law of war crimes as applied in the P.I. before WWII - which Frank Murphy knew well.
Regards
Mike
Murphy opinion (13pp.) attached.
ICRC Customary IHL - War Crimes
ICRC Customary IHL, Chapter 44. War Crimes.
Same drill as before: link, blackletter rule, commentary; except the first commentary is much longer (28pp.). They all have to be read to understand the rules' applications.
Quote:
156. Definition of War Crimes
Rule 156. Serious violations of international humanitarian law constitute war crimes.
157. Jurisdiction over War Crimes
Rule 157. States have the right to vest universal jurisdiction in their national courts over war crimes.
158. Prosecution of War Crimes
Rule 158. States must investigate war crimes allegedly committed by their nationals or armed forces, or on their territory, and, if appropriate, prosecute the suspects. They must also investigate other war crimes over which they have jurisdiction and, if appropriate, prosecute the suspects.
159. Amnesty
Rule 159. At the end of hostilities, the authorities in power must endeavour to grant the broadest possible amnesty to persons who have participated in a non-international armed conflict, or those deprived of their liberty for reasons related to the armed conflict, with the exception of persons suspected of, accused of or sentenced for war crimes.
160. Statutes of Limitation
Rule 160. Statutes of limitation may not apply to war crimes.
161. International Cooperation in Criminal Proceedings
Rule 161. States must make every effort to cooperate, to the extent possible, with each other in order to facilitate the investigation of war crimes and the prosecution of the suspects.
So much for black-letter rules.
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What follows is a more important issue to me, which I have mulled over the last two years; and which I will address candidly.
James Spaight contended in 1911 that:
Quote:
[T]he International Law of War ... is a quasi-military subject in which no one, in the army or out of it, is very deeply interested, which everyone very contentedly takes on trust, and which may be written about without one person in ten thousand being able to tell whether the writing is adequate or not.
My conclusion is that nothing has changed in a century; the international laws of war are a minimal topic with little value added for most people; and that topic is probably better left to specialized sites such as Lawfare and Opinio Juris, where there is peer review. If I'm wrong, please tell me why.
Regards
Mike