War crime tribunals in the field
We find some interesting history here.
In olden days (say, the 18th century), the Laws of War recognized the right of a field commander (on land or at sea), in his sole discretion, to summarily execute a pirate, spy or other war criminal.
While recognizing that ultimate power, two rather well-known US commanders appointed "military tribunals" to at least confirm the guilt of war criminals - George Washington (trials of Maj. John Andre and Joshua Hett Smith) and Andrew Jackson (trials of Arbuthnot and Ambrister).
See, Marmon et al., Military Commissions (THE JUDGE ADVOCATE GENERAL'S SCHOOL, Charlottesville, Virginia, April 1953), pp.6-7 (still the definitive history of US military commissions).
Marmon posits a commander's personal rationale for using tribunals as follows (id., p.10 pdf):
Quote:
It is probable that military cammissions and tribunals of a similar nature came into being because commanders no longer wished to bear the sole responsibility when the liquidation of a pirate, a spy, or an otherwise unlawful belligerent appeared necessary or expedient.
A case originating in the Natal (id., pp. 10-11 pdf, n.26), provides the larger rationale for some formalization of the on-site process:
Quote:
26. In Tilinko v. Attorney General for Natal (95 Law Times Report, N.S., 1854 (1907), the Earl of Halsbury expressed this opinion: "If there is war, there is the right to repel force by force; but it is found convenient and decorous, from time to time, to authorize what are called 'courts' to administer punishment, and to restrain by acts of repression the violence that is committed in time of war; instead of leaving such punishment and repression to the casual action of persons acting without sufficient consultation, or without sufficient order or regularity in the procedure in which things alleged to have been done are proved.
So, by WWI, summary execution was out; but the door was left open for military commissions in the granddaddy of FM 27-10, The Rules of Land Warfare (1914) (the same in the 1934, 1940 & 1944 revisions, under which my dad fought his war):
Quote:
40. Duty of oflcers as to status of troops.- The determination of the status of captured troops is to be left to courts organized for the purpose. Summary executions are no longer contemplated under the laws of war. The officers' duty is to hold the persons of those captured, and leave the question of their being regulars, irregulars, deserters, etc., to the determination of competent authority. Land Warfare, Opp , par. 37.
Military tribunals (other than courts-martial, including military commissions) are still available under Article 21 (10 USC 821):
Quote:
§ 821. Art. 21. Jurisdiction of courts-martial not exclusive
The provisions of this chapter conferring jurisdiction upon courts-martial do not deprive military commissions, provost courts, or other military tribunals of concurrent jurisdiction with respect to offenders or offenses that by statute or by the law of war may be tried by military commissions, provost courts, or other military tribunals.
Held constitutional (then Article 15), Ex Parte Quirin, 317 U.S. 1 (1942).
Regards
Mike
Two separate, but related comments
JMA:
Given a compliant indigenous folk with an underwhelming ability to resist, your suggestions and your multi-national force would probably be quite effective as you say:
Quote:
I would suggest under circumstances where the situation requiring humanitarian intervention bring troops from many countries all across the world the word needs to be spread to any Crockett, Bowie. Boone or Carson types running around in the woods armed that the carrying of weapons for the duration will be problematic as the soldiers will not wait to be shot at but rather enforce the peace and reduce the number of weapons carried by the citizenry which could potentially confuse matters.
....
I tend to go with and thorough prep-fire of the objective followed up with prodigious levels of prophylactic fire while sweeping through and clearing the objective. Not likely to find a living thing there when you arrive.
Solitudinem facient et pacem appellant. (Tac.)
I fear I am a better Celt than a Roman.
--------------------------
MAL (mon "jumeau mal" ! :))
A large recent literature exists on military commisions; but that is mostly in the context of the Gitmo MCs, which are very close to formal courts-martial. Besides the 1953 JAG School article I cited above, I've found , e.g., recent articles on the use of US field MCs in the Mexican War and Civil War.
Myers, Conquering Peace: Military Commissions as a Lawfare Strategy in the Mexican War (2008)
Vagts, Military Commissions: The Forgotten Reconstruction Chapter (2008)
The use of field-expedient military tribunals goes well back in time. You might be especially interested in this example, since it involved the "Colonial Troops", 1684: Indian murderers punished by Du Luth (starting at p.114 - 12 pages; you can check out the original when you are next in Paris). This is a translation of his 1684 report, which illustrates the use of diplomacy and smarts over brute force (which "Du Luth" didn't have anyway).
"Du Luth" was really Daniel Greysolon-Delhut, who was a talented officer and above average in Canada (bios in French and English). He could have treated the murders of the French-Canadian fur traders as a native uprising or as a law enforcement matter. He selected the latter approach and did not simply execute the murderers.
From the English bio, a brief summary of this case:
Quote:
He commandeered the services of licensed traders to help fortify Michilimackinac, reprimanded the Potawatomis for their lukewarm attitude toward the French, and renewed his peace-making efforts among the Foxes, Sioux, and Chippewas. The last of these nations was especially difficult to manage as was demonstrated in 1684 when four of its warriors murdered two French traders. When one of the culprits appeared at the Jesuit mission of Sault Ste Marie the staff of 12 on duty there did not dare to arrest him, fearing the reprisals of his tribe. Dulhut, as soon as he learned of the incident, hurried to the mission [JMM: with 6 troopers], rounded up the suspects, including the chief Achinaga and his two sons, and put them on trial. Achinaga was acquitted and his younger son pardoned, but the two others who had been found guilty were executed before 400 Indians. By coldly meting out this punishment, Dulhut taught the natives that the French were a people to be respected and feared.
This is a good case study in how to handle situations when your force is underwhelming.
I can see the murder scene from this room when the leaves have fallen. One of the six troopers with Greysolon-Delhut, when the principal murderer was arrested at Sault Ste. Marie (about 250 miles from here) (see p. 115), was one "Le Mire" (prenom: Joseph - one of my many TdMs in Canada).
The suggested use of military commissions in the field may well find few advocates. That despite the fact that it could provide prompt justice as an alternative to either "justice" delayed (as at the Hague; and hence, in reality, often denied) - or to shooting prisoners, which even if effective leaves no honor as recompense for the shooters.
Regards
Mike
Yes, field military commissions
are a "form of martial law" - governed by the Laws of War (or more quaintly, the "laws of honest warfare").
And, yes, I do "know what you mean"; but fail to see why it's a difficult topic to discuss in the public domain. No one is asking anyone to lay bare what they have actually done. The issues hinge on who should be killed in armed conflicts and under what circumstances - not an unknown public discussion topic by any means.
The basic question is what alternatives one can present (if one so believes) to the conduct exemplified by and to Anne de Batarnay de Joyeuse, Baron d'Arques, Vicomte then Duke of Joyeuse (d. 20 Oct 1587), who massacred 800 Huguenots at Saint-Eloi, Poitou, 21 June 1587; but who lived by that sword, died by that sword, at Coutras:
Quote:
The Catholic line was shattered into fragments and rolled up from the flank; Joyeuse took to his heels and was cornered by a group of Huguenot cavalry. He threw down his sword and called: "My ransom is a hundred thousand francs!" His reward was a shot in the head: for the commander who had ordered Huguenot wounded to be killed on the field and who had butchered garrisons that had surrendered relying on the laws of honest warfare, there could be no quarter.
Those particular and other incidents in the "Wars of Religion" started folks thinking about the "laws of honest warfare" (that is, warfare with honor). The irregularities of the next subsequent Thirty Years' War further exemplified the need for what are in effect "honor codes".
Like other "honor codes", they can be bypassed by winks and nods, as illustrated by this example of convoluted logic:
Quote:
from JMA
I am not against tribunals at all but I do see claims of "jungle justice" and "kangaroo courts" being raised and even to a more shrill level if the death sentence is dished out. You are talking about a form of martial law right?
I do not advocate shooting prisoners but I am not a proponent of taking prisoners (if you know what I mean) unless they are really needed for intel gathering purposes.
Like giving only limited quarter is not a form of "jungle justice". :(
Those "laws of honest warfare" also do not operate so well where "insiders" and "outsiders" are involved, and where reciprocity does not exist.
Indirect fires will often not do it, JMA,
even in the conventional situation posited by you:
Quote:
from JMA
My conversation here relates to a combat environment where there are few civilians and civilian installations. The preparatory bombardment would comprise little more than airstrikes.
Using this example of where a say a battalion is in a prepared position say between 500-800 soldiers. My point was that one would surely attempt through "fire support" to inflict so many casualties that the final infantry assault would be merely mopping up.
Subject to weapon availability I would select the most devastating in terms of KIA. Working on the rule of thumb of WIA:KIA as 3:1 with other survivors either surrendering or running one really needs to maximize the KIA and increase the severity of the WIA to ensure they cannot return to battle at some later stage.
Bombardment (air & arty, pre- and during assaults) may well only degrade the ability of good soldiers to resist in prepared positions.
Examples abound from WWI, WWII, Korea and Vietnam (also the pounding taken by the Finns on the Karelian Isthmus at the ends of both the Winter and Continuation Wars) where troops took a licking and kept on ticking. E.g., Hill 937, Ap Bia Mountain aka Hamburger Hill - Wiki History & Wiki Movie. From the History (emphasis added):
Quote:
Casualties
U.S. losses during the ten-day battle reportedly totaled 72 dead and 372 wounded. To take the position, the 101st Airborne Division eventually committed five infantry battalions, about 1,800 men, and ten batteries of artillery. In addition, the U.S. Air Force flew 272 support sorties and expended more than 450 tons of bombs and 69 tons of napalm.
U.S. claimed the 7th and 8th Battalions of the 29th PAVN Regiment suffered 630 dead discovered on and around the battlefield, including many found in makeshift mortuaries within the tunnel complex, and an unknown number of wounded that likely totaled most of the remainder of the two units.
Since this engagement took place in a sparsely populated area of the A Shau, the presence of civilians was not an issue as to the tactics employed. Harry Summers wrote a more in-depth article, Battle for Hamburger Hill During the Vietnam War, in 1999 (30 years post). The media view at the time is illustrated by "The Battle for Hamburger Hill" (Time. 1969-05-30).
As I've read the posts here from folks who've done Iraq and Astan, the combat environments are much more complicated than more conventional environments where civilians are not a large issue. My conclusion (legal) is that the tactical issues of civilians, enemy wounded and enemy surrenders will be with us no matter how much technology and longer-distance fires we throw at the problem.
