Command Responsibility and War Crimes: general discussion

[jmm99]

I'm beginning to like this topic more and more - as it becomes less and less "legal" in its essence. Its essence consists of history, persons, politics, policies and strategies, centered on the civilian-miltary interface that developed General Orders, No. 100 (aka Lieber Code).

BLUF: This 3.5 min video by John Witt, The Great Forgotten Character of the Civil War, sums up his arguments.

All of Witt's videos (as well as some publications) are linked at Lincoln's Code: Related Audio/Video.

The three best video lectures by John Witt on Lincoln's Code (each is about a hour) are these three: Book Talk with Professor John Fabian Witt: Lincoln's Code: the Laws of War in American History (Yale Law School); Lincoln's Code: The Laws of War in American History (Library of Congress); and Lincoln's Code: The Laws of War in American History (Duke Univ.).

Looking at the civilian-military interface according to Witt, we have three components:

1. The Civilians, who were Lincoln, Stanton and Seward in major roles.

2. The Civilian-Military Interface was Lieber.

Lieber, as a young soldier, was badly wounded in Belgium, chasing after Bonaparte. He left Prussia because of his liberal leanings in the 1820s. Lieber was informed by practitioners, who were also theorists and teachers: Machiavelli (e.g., The Art Of War ; see also The Discourses and The Prince on the same Amazon page), Frederick the Great (e.g., Luvaas, Frederick the Great on the Art of War), Clausewitz (e.g., Howard & Paret trans., On War).

Note that Lieber's ideological trajectory was different from the trajectory that led to the International Humanitarian Law currently accepted in the EU: from Vattel ("Father Namby Pamby" in Lieber's words) through Kant (to sum Lieber's opinions, a "closet pacifist") to the "ICRC Community" (the European Conventions and Red Cross from the last half of the 19th century, the League of Nations, the UN, etc.).

3. The Reviewing Panel. Of these general officers, a majority had legal educations, but they were primarily soldiers and secondarily lawyers. The chief example was Henry Halleck (West Point, 3rd in class; like Sherman, he practiced law as a minor part of his life). Halleck wrote two major treatises:

Elements of military art and science, or, Course of instruction in strategy, fortification, tactics of battles, &c. : embracing the duties of staff, infantry, cavalry, artillery, and engineers : adapted to the use of volunteers and militia (1861; 492pp)

This treatise reflected Halleck's study of Jomini, well before the US publication of The Art Of War (1862 Eng. trans). Jomini, a practitioner, who also a theorist and teacher.

International law, or, Rules regulating the intercourse of states in peace and war (1861; 958pp.)

This treatise very much reflected Halleck's views, as its preface states:

During the war between the United States and Mexico, the author, while serving on the staff of the commander of the Pacific squadron, and as Secretary of State of California, was often required to give opinions on questions of international law growing out of the operations of the war. As it was sometimes difficult or impossible to procure books of reference, except in the libraries of ships of war which occasionally touched at the ports of the northern Pacific, he commenced a series of notes and extracts, which were arranged under different heads, convenient for use. The manuscript so formed has been occasionally added to as new books were procured, and it is now given to the press, with the hope that it may be found useful to officers of the army and navy, and possibly, also, to the professional lawyer. With this view, a number of authorities are referred to at the end of each paragraph. It is proper to remark that these authorities are not quoted in support of the views expressed in the text, for they are sometimes directly opposed to the opinions so expressed. They will, however, be found to contain something upon the questions discussed, or upon matters immediately connected with them.

Halleck and Lieber had no substantial legal disagreements.

Weigley's two books: The American way of war;: A history of United States military strategy and policy (The Wars of the United States); and History of the United States Army (Macmillan Wars of the United States) (The Wars of the United States), should be useful background to the 18th and 19th century period covered by Witt's book and lectures.

BL: Witt's book takes us from the Limited War of the 18th century and early 19th century (i.e., limited to the battlefields, and generally avoiding civilian populations) to the Total War of the later 19th century (e.g., Sherman's Marches in Georgia and the Carolinas) and the World Wars.

- to be cont.

[jmm99]

In following Witt's trail, I ran into two books which seemed too interesting not to order them.

The first deals with the Limited War construct of the the 18th century and early 19th century - a video and the book itself.

Book Talk with Professor James Q. Whitman: The Verdict of Battle: the Law of Victory and the Making of Modern War (Yale Law School) (1.5 hrs)

Meet the author, James Q. Whitman, and listen to a conversation about his new book. Today, war is considered a last resort for resolving disagreements. But a day of staged slaughter on the battlefield was once seen as a legitimate means of settling political disputes. James Whitman argues that pitched battle was essentially a trial with a lawful verdict. And when this contained form of battle ceased to exist, the law of victory gave way to the rule of unbridled force. The Verdict of Battle explains why the ritualized violence of the past was more effective than modern warfare in bringing carnage to an end, and why humanitarian laws that cling to a notion of war as evil have led to longer, more barbaric conflicts.

and The Verdict of Battle: The Law of Victory and the Making of Modern War (Amazon)

Today, war is considered a last resort for resolving disagreements. But a day of staged slaughter on the battlefield was once seen as a legitimate means of settling political disputes. James Whitman argues that pitched battle was essentially a trial with a lawful verdict. And when this contained form of battle ceased to exist, the law of victory gave way to the rule of unbridled force. The Verdict of Battle explains why the ritualized violence of the past was more effective than modern warfare in bringing carnage to an end, and why humanitarian laws that cling to a notion of war as evil have led to longer, more barbaric conflicts.

Belief that sovereigns could, by rights, wage war for profit made the eighteenth century battle’s golden age. A pitched battle was understood as a kind of legal proceeding in which both sides agreed to be bound by the result. To the victor went the spoils, including the fate of kingdoms. But with the nineteenth-century decline of monarchical legitimacy and the rise of republican sentiment, the public no longer accepted the verdict of pitched battles. Ideology rather than politics became war’s just cause. And because modern humanitarian law provided no means for declaring a victor or dispensing spoils at the end of battle, the violence of war dragged on.

The most dangerous wars, Whitman asserts in this iconoclastic tour de force, are the lawless wars we wage today to remake the world in the name of higher moral imperatives.

Whitman recognizes, BTW, that one pitched battle did not necessarily lead to a binding result; and that result might be reached only after a series of pitched battles - e.g., the career of Frederick the Great. Moreover, the "verdict" of a pitched battle(s) was not always accepted.

The second book deals with the much longer period before 1701, where warfare resembled Sherman's Marches and then some.

Lauro Martines, Furies: War in Europe, 1450-1700 (Amazon)

We think of the Renaissance as a shining era of human achievementa pinnacle of artistic genius and humanist brilliance, the time of Shakespeare, Michelangelo, and Montaigne. Yet it was also an age of constant, harrowing warfare. Armies, not philosophers, shaped the face of Europe as modern nation-states emerged from feudal society. In Furies, one of the leading scholars of Renaissance history captures the dark reality of the period in a gripping narrative mosaic.

As Lauro Martines shows us, total war was no twentieth-century innovation. These conflicts spared no civilians in their path. A Renaissance army was a mobile city - indeed, a force of 20,000 or 40,000 men was larger than many cities of the day. And it was a monster, devouring food and supplies for miles around. It menaced towns and the countryside-and itself-with famine and disease, often more lethal than combat. Fighting itself was savage, its violence increased by the use of newly invented weapons, from muskets to mortars.

For centuries, notes Martines, the history of this period has favored diplomacy, high politics, and military tactics. Furies puts us on the front lines of battle, and on the streets of cities under siege, to reveal what Europe's wars meant to the men and women who endured them.

Hans Delbruck, History of the Art of War, vols I-IV (esp. vol III and vol IV); Philippe Contamine, War in the Middle Ages and Paret, Makers of Modern Strategy, to list just three references, seem material (IMO) to the issues raised by Witt, Whitman and Martines, in what amounts to at least six centuries of political and military history.

All in all, these three books seem an outstanding workout in military history.

Regards

Mike

[wm]

Mike,

At the risk of making a sweeping generalization, the issue is less about when and more about why. In other words, I think that the distinction your sources have noted between European Rennaissance and Enlightenment warfare may have have more to do with the underlying source of conflict. I suspect that a war which is in large part based on a conflict of ideology --Catholicism versus Protestantism in the 30 Years War, for example--will tend to be much more nasty than one which is largely focussed on using force to legitimate a claim to territory or establish one's hegemony--War of Spanish Sucession, Seven Years War, and the War of Austrian Sucession, e.g.
The first three Anglo-Dutch Wars (wars to establish commercial hegemony) belong to the earlier period, yet tended to be pretty civilized. If we move to the 19th Century, compare the nastiness of the Napoleonic Wars and the American Civil War (conflicts of ideologies) to that of the Mexican, Austro-Prussian, Franco-Prussian, and Spanish-American Wars to name just a few examples of territorial land grabs/wars of hegemony.

[jmm99]

hi wm,

Good to hear again from the "Lunatic Fringe" (was that a consequence of your time spent at that Place on the Hudson ? ); and see windmill tilting in action. What follows is my own windmill tilting - definitely an opinion piece, as to which differences exist as to the opinions.

Seriously, my own generalization is summed in this post's title: one has to look at the "Whys" (and the "Why Nots") before taking facts (to the extent the facts are "known") from one time period and applying them to another period (the "Whens").

Again, generally, one can see (1) the "real" reasons for the conflict; (2) the "real" forms of governance of the parties; and (3) the "real" ideologies of the parties, as factors influencing "What" (Kind of War) we'll see.

The wicked words above are "known" facts, "real" reasons, "real" forms of governance, "real" ideologies, etc. (aka verifiable historical facts, which plague accurate re-enactments of historical events). They particularly plague one who believes (as I do) that the life of the military arts and the legal arts is not logic, but is experience.

Of course, one who is very creative (not my personal bent) can posit (assume) a set of facts, constraints, etc.; and from those create a very logical and internally coherent framework for roleplaying, etc. The danger is that that framework may look great, but fall on its a$$ in practice - in short, articulate incompetence.

The dichotomy between Logic and Experience will always be with us - the wrestling Bull and Bear (of Wall Street) makes a neat symbol.

I see timeframes (the "Whens") as being useful for ordering purposes - and, with respect to the topic at hand, for comparing what was occuring in the military arts in one period with what was occuring in the legal arts of the same period.

Getting back to Jim Whitman and his "Pitched Battle" theory, I came upon an earlier (before his book was published) video lecture, Whitman Delivers Fulton Lecture in Legal History (Chicago Law, 2009). The link has a short abstract of his theory, as well as a 1 hour lecture on it - better than the more recent Yale effort.

My principal argument with Whitman is that he seems to be saying (perhaps his book, when I get it, will clear that up) that the legal arts drove the military arts in the "era" of "Verdict by Battle". Generally, my argument is that the opposite is (should be) the norm - military law should be driven by the military arts. Yes, politics and policies also enter into that fray.

Regards

Mike

[wm]

So many opportunities to comment in your last post, but I will limit myself to two:

The wicked words above are "known" facts, "real" reasons, "real" forms of governance, "real" ideologies, etc. (aka verifiable historical facts, which plague accurate re-enactments of historical events). They particularly plague one who believes (as I do) that the life of the military arts and the legal arts is not logic, but is experience.

History as re-enactment is central to the work of R.G. Collingwood, a philosopher who was also a practicing archeologist and historian of Roman Britain. However, his view of re-enactment is not simply what you may have seen had you been at Gettysburg at the beginning of this past July. He is rather obtuse in his description, but you might want to look at The Idea of History in your spare time.

My principal argument with Whitman is that he seems to be saying (perhaps his book, when I get it, will clear that up) that the legal arts drove the military arts in the "era" of "Verdict by Battle". Generally, my argument is that the opposite is (should be) the norm - military law should be driven by the military arts. Yes, politics and policies also enter into that fray.

I tend to agree with you here. In fact, I think that this is analogous to what Thomas Kuhn had to say about paradigm shifts. Collingwood also has something to say about it in his discussions of metaphysics and philosophical method. 'Method', by the way, can also be replaced with 'logic' on at least one interpretation of the meaning of 'logic.'

I suspect that quite often we have changes in what we do (practice or, in the present context, military art) that occur quite unreflectively. After the fact, one may start to analyze the new practice and attempt to explain its efficacy (or lack thereof), which is the formation of the theory. In other words, theory may be logically prior to practice, but practice is quite often temporally prior to theory.
As an example, let's suppose near the end of a given campaigning season at some time in the distant past, a victorious commander decides to billet his army in the captured city rather than razing it, as was the prior custom. He discovers that he and his army have benefitted as a result (easier to keep campaigning, looting and pillaging next season because he still has his army at hand, perhaps). Based on this exerience, a new rule of conduct (military "law") is promulgated: "Do not destroy captured cities." (BTW, I doubt that just a single instance will suffice.) The final step would be for some legal theorists to generalize this new legal construct by mapping the law to a theory or building a new theory as to why not destroying captured cities instantiates some value of much broader application--like a right of innocent people to be safe in their property and possessions. Interestingly, to me at least, the original pragmatic motivation--the commander's desire to be able to start his next campaign sooner-- (if one existed at all) has been lost in the process.

[Dayuhan]

Given the "small wars" focus here, it might be interesting to expand the "Was ___ a war criminal" to the Native American Wars, and to the American conquest of the Philippines.

Was Howlin' Jake Smith a war criminal?

A matter, perhaps, for another thread...

[jmm99]

hi wm,

I've not read Collingwood; I've read about Collingwood - and some snips. My impression is that he was willing to go well beyond what the five senses register and explore what was in the minds of the historical actors. In short, he looked to the facts and to the "facts".

My example of "re-enactment" to illustrate my usage (probably superficial in philosophical terms) is based on the Scopes case (complete transcript, 339pp.). First, you are Darrow as you read, and understand, the seven day transcript; next you are Bryan as you repeat the process. Since the Darrow-Bryan examination is the highlight (in reality, it was outside the presence of the jury), you'd repeat the being-Darrow and being-Bryan processes for that part of the transcript (only 20pp.).

A bit of imagination, intuition and fuzzy logic helps in re-enacting the drama. I have to admit that I've watched Inherit the Wind (which is an historical event different from the Scopes trial) multiple times. So, I probably have suffered something of a "Kuhnian" paradigm shift and conflation of the two events. Am I Clarence Darrow or Spencer Tracy ?

I love your example of paradigm shift. In my non-philosophical terms, it sums to me as:

Rule of Conduct: Do not destroy captured cities.

"Real" Reason ("motive", "cause") for Rule: With army garrisoned in the captured and intact city, it's easier to keep campaigning, looting and pillaging next season.

"Received" Reason (by theorists, probably intent on doing "good") for Rule: The right of innocent people ("civilians"; but are all of them "innocent" ?) to be safe in their property and possessions.

Nice, on-point example of Spartan simplicity.

Holmes, in his Common Law - 6th Lecture, made the same point in more verbose fashion. The basic issue was why do we take "possession" into account in property disseisin cases, rather than directly addressing "ownership" (which after all is the ultimate question). Kant and various other high-powered theorists came up with constructs based on freedom, liberty, free will, etc., as the reason(s) to look at "possession" as an initial issue. The real reason (in English Common Law) was simply practical. Different writs existed to try "possession" vs "ownership". The "possessory" writs were newer (trial by a form of jury, rather than trial by battle), more flexible (many different types of situations were covered), quicker (fewer trial delays were allowed) and settled most of the cases anyway.

Hugh Everett made this point about verifying a theory by its capacity to generate a predicted experience, which accords with a subsequent actual experience (pp.253-254):

A crucial point in deciding on a theory is that one does not accept or reject the theory on the basis of whether the basic world picture it presents is compatible with everyday experience. Rather, one accepts or rejects on the basis of whether or not the experience which is predicted by the theory is in accord with actual experience.

Everett then used the Copernican theory (which is complete enough to allow the deduction that the Earth's inhabitants will not feel its motions, spin and path around the sun). He asked: "Do you feel the motion of the Earth ?"

To me, Everett makes a good point.

Regards

Mike

[jmm99]

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