Command Responsibility and War Crimes: general discussion

[Pete]

From there it was all downhill, a sordid tale of rapine, pillage and plunder.

When I attended Fort Benning OCS in 1977 one of the instructors who spoke to us in Infantry Hall had a humorous Vu-Graph slide about the ideal TO&E for an Infantry division. He pointed out the little box on the organizational chart showing the authorized personnel and equipment for the Rape, Pillage and Plunder Section -- one Major, one Master Sergeant, and one Truck, Utility, Utility, One-Quarter Ton, 4x4, M151A1, with Equipment.

[ganulv]

[jmm99]

by John Fabian Witt (Amazon; used hardcover, like new, under $3 + $4 ship).

Snips from Lawfare book review by Steve Neff:

Of all the images that George Washington conjures up in the minds of Americans, surely that of war criminal must be the least likely. Yet this remarkable book begins with an account of charges levelled against Washington as a result of conduct in the French and Indian Wars in 1754. Specifically, the allegation was complicity on Washington’s part in the killing of a non-combatant in the course of an attack on a French detachment – a charge that Washington even admitted to (although he soon contended that the admission was inadvertent). In his later career as the leader of the American Revolutionary armies, Washington would take scrupulous care to become, in Professor Witt’s words, “the living embodiment of the Enlightenment way of war.”

The book proceeds to treat the way in which that Enlightenment way of war, as expounded most famously by the Swiss writer Emmerich de Vattel in 1758, evolved over the period from the late Eighteenth Century to the First World War. The book’s title therefore rather understates the range of material covered, since the Civil War section is only the middle part of three, comprising about half the book. It is a fascinating story, told with style and a steadily critical eye.

Detailed attention is especially given to two vital issues that presented themselves with special force in the frontier conditions prevailing in America in the late Eighteenth Century. The first was the presence of slavery, and the many ramifications that it was to have. ... The second problematic issue was unconventional warfare.
...
The challenges posed by unconventional warfare were also constantly at hand. As American settlement expanded relentlessly southward and westward, struggles against Indian tribes became common. And the view was widely held – not least by the redoubtable lawyer-cum-frontier warrior Andrew Jackson – that Indians were not entitled to the benefits of the Enlightenment way of war, since they refused to abide by its constraints. Jackson, as so often, proved as good (or bad) as his word. Where he encountered serious political trouble, though, was not in his treatment of Indians, but in his robust handling of two British nationals accused of inciting and aiding Indian enemies during Jackson’s Florida campaign. They were tried by a hastily organized military commission, found guilty, and executed in 1818.

Unconventional warfare also became an important, and highly troublesome, feature of the Mexican War of 1846-48, as Mexico began to rely on guerrilla forces in the wake of the repeated defeats of its conventional armies in the field. In response, General Winfield Scott made the first systematic use in American history of military commissions (or “councils of war,” as they were called) to try captured enemy troops for violations of the laws of war – and also to deny combatant status to guerrilla fighters.

In the Civil War, guerrilla warfare again became a feature of the hostilities, alongside familiar conventional clashes between regular armies. In this conflict, Francis Lieber, a German immigrant political scientist and international lawyer, made his famous contribution in the form of the Lieber Code. But he also made a less known, and highly important, second contribution to the Union cause: the exposition of the law on unconventional warfare. ...
...
If the Civil War finally ended the slavery issue, the problem of unconventional warfare continued to be very much alive, first on the western frontier in North America, and then in the Philippines in the years following the Spanish-American War of 1898. In these situations, the problem, in Witt’s view, is that the sense of the overwhelming justice of the Union cause in the Civil War – i.e., the extirpation of slavery – was no longer present. But the permissive approach to military necessity that suffused the Lieber Code nonetheless remained part of the American approach to the laws of war. In this sense, the longer term legacy of the Lieber Code may well have been more malign than is generally appreciated. The story that Witt tells, in short, is certainly not a triumphalist one.

Precedents set in the Mexican and Civil Wars continued to be applied in these later conflicts. In the Indian wars, trials by military commission were employed, resulting in death sentences in a number of cases. In the Philippines, the lawfulness of torture for the extraction of key information came to be a highly controversial issue. At least five American soldiers were placed on trial for engaging in the practice. The most notable was Major Edwin F. Glenn, who was also a lawyer. He was convicted, though with only a light sentence imposed. Remarkably, Glenn went later became the chief author of the United States’s manual on the laws of war of 1914, in which heavy reliance was placed on the earlier Lieber Code.

More in the book review and much more in the almost 600 page book.

Regards

Mike

[Infanteer]

Sounds like 600 pages of "Perspective Fail".

[jmm99]

Not this I hope.



But then, each has one's own perspective, doesn't one ?

Regards

Mike

[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