Command Responsibility and War Crimes: general discussion

[Bill Moore]

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.

That is only partially true and misleading in a respect. If we could simply erase Pakistan from the equation, then it would be an internal conflict, but the reality is that is a hybrid conflict that doesn't conform to simple definitions. It is part insurgency, part anarchy, part surrogate/UW, part global non-state actor inspired/supported, etc. This isn't Malaya or the Philippines (which we all understand, yet we still want to focus on a narrow COIN strategy).

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.

This is definitely a large part of the problem, but not "the" problem. This statement assumes that if Afghanistan had a functional government that Pakistan and non-state actors would cease hostilities. While neither of us know, I suspect that isn't true, and I also suspect that "we" can't fix the Afghan government, so using that as a strategy is flawed from the outset.

[Bill Moore]

A couple of other thoughts related to the above post.

Much of our doctrine on COIN is centered on legitimacy, which in itself is a fuzzy term, but from a combatant perspective is legitimacy really the key to success?

While not a fan of the center of gravity concept, it can be useful if we're honest with our analysis. As a source of power, the ability to continue the fight, etc., if the Afghanistan government was considered legitimate by a majority of Afghans would that stop the Taliban from fighting (as many of stated, the Taliban is loose coalition of various militant groups, so more appropriately would it reduce the level of violence to a manageable level?).

On the other hand, if the power brokers in Pakistan felt the government in Afghanistan was legitimate how would that impact the level of violence?

I don't know, but again suspect the COG in Pakistan is more relevant than the population in Afghanistan for reducing the level of violence to a managable level.

Instead of jumping to assumptions, I think we need to ask a lot more questions to shed light on the problem, and then and only then discuss changes of strategy. I agree that our doctrine pushed us further and further down the wrong road, but I bet we disagree on what the right road is. We would probably agree if we had a common understanding of the problem that needs to be solved, and that is where we need to start anew.

[Bob's World]

Bill,

I think I appreciate where you are coming from, and while it is a reasonable perspective I think a push into Pakistan in an effort to solve Afghanistan would find the same thing we found in Laos and Cambodia: A lot of targets to destroy, and perhaps are follow-on lull as the insurgency is forced to drop from a high Phase II back down into Phase I for a while as it recovers, and then surges back again stronger than ever. The bonus in Pakistan is that in launching into a nuclear state we risk far greater consequences than the US had to worry about in launching into Laos and Cambodia.

If defeating the insurgent could resolve an insurgency this could work, but I just don't see where any enduring results have come from such actions. Pakistan's role in this is frustrating to be sure, but they are not the cause of our problems. If we want to find the cause of our problems better we look at our own actions:

1. We disrupt the balance of power, allowing the Northern Alliance to prevail over the Taliban. (I am quite sure that as the Taliban fled into Pakistan they were very confident that the Northern Alliance could never have pulled that off without our help, and that as soon as we left they would come back and re-establish their government.

2. We anointed Karzai to be the leader years before any election took place, and then in a result that the entire world recognized as rigged, Karzai wins that election as well.

3. We oversee the formation of a "central" government that disrupts traditional systems of patronage; and guide the development of a constitution that says all the right things, but does all the wrong things, vesting all patronage nationally into that one man who we had anointed and elevated to lead Afghanistan.

4. We then dedicate ourselves to the defense of this government we had created and set out in earnest to force the people of Afghanistan to submit to its rule.

All Pakistan ever did was employ a shared Pashtun populace to maintain a degree of influence over Afghanistan, and quite reasonably supported a Taliban government that also drew its support from that same populace base in both countries.

No, to launch an attack into Pakistan in an effort to "win" might make our egos feel better for a while, but it would not be the best thing we could do for the people of this region.

To just walk away and let it sort out naturally would be less bloody and more durable.

To stay with a focus shifted to building and enforcing trust trust between the two sides may prove to be an exercise in futility, but it is far better than to simply stay and help one side beat up on the other. But first we must change how we think about these things.

[Bill Moore]

While not ruling it out, I am not advocating attacking Pakistan, but rather reexaming the so called center of gravity. I don't think it is the Afghan people, I think it is the power brokers (not necessarily the civilian government) in Pakistan.

I'm not offering a solution, only suggesting we're focusing a lot of effort on the wrong problem, which will likely be a waste of national treasure when we finally realize it isn't working. If we can't address the real problem because the risk versus gain isn't worth it, then maybe pulling out (with several caveats) is the right course of action, but that is a hard and painful decision to make since we have committed so much to date. Pride influences our decisions more than facts, so whatever the new course of action is it will need to address both the facts and our national pride.

[Bob's World]

I don't know if its a COG or a POB (Point of Blame), but I say shift the focus to the conduct of a Constitutional Loya Jirga with full participation by both sides of this little fracus in attendance (with safety guaranteed by ISAF and no one being deemed "beyond the pale" by ISAF or GIRoA). This is political. Fix the politics and the rest will fall in place. As to ISAF they need to transition to a role of keeping both sides honest for some period of time, and then fade away altogether.

[AdamG]

Somewhat related -

At the outset of the Civil War, neither the Union nor the Confederacy had a centralized military intelligence department — and yet the need for information on enemy troop movements, political developments and even simple things like geography was immediate. In the breach, they turned to a motley crew of amateur spies who were as untrained and untested as the soldiers who met on the early battlefields at Bull Run and Wilson’s Creek.

Despite the equally jumbled espionage operations in the North and the South, the Confederacy had several advantages. Even before the South seceded, secessionists had established spy rings in Washington, a hotbed of southern sympathizers, which gave them access to vital information at some of the highest levels of government. The South also benefitted from the stream of critical intelligence that came its way from the many former Union officers who swore their allegiance to the South after secession. And while the Union faced an enemy with a loosely assembled government still in its infancy, the Confederacy opposed an established and well-known target.

http://opinionator.blogs.nytimes.com...%2Findex.jsonp

[Pete]

In 1995 our Civil War Roundtable in Frederick, Maryland heard a presentation on W.T. Sherman and the Law of Land Warfare. The guy who gave the lecture was a JAG O-5 from HQDA who was wearing his dress greens when he spoke to us. He said he was from South Carolina or Georgia and that he had spent much of his JAG career working with Special Forces.

He told us he had given many talks to foreign officers and NCOs on the Law of Land Warfare when he accompanied SF training teams overseas, adding that most foreign military personnel had expressed admiration for how the U.S. armed forces play by the rules, Then he said there was a notable exception to that reputation in American military history, the case of William T. Sherman.

“Does this look like a crazy man or not?” he asked, flashing a photo of Sherman on the screen. From there it was all downhill, a sordid tale of rapine, pillage and plunder. It made the guy’s wearing of dress greens a bit unseemly to say the least. It made one wonder whether the lecture was the official position Of the U.S. Army.

Grant’s instructions to Sheridan on how to scorch the Shenandoah Valley in 1864-65 and Sheridan’s guidance to his army implenting it are in about the same league as Sherman. The idea was to make the Valley inhospitable to Jubal Early & Co. and to destroy the "Granary of the Confederacy."

[Rifleman]

Grant’s instructions to Sheridan on how to scorch the Shenandoah Valley in 1864-65 and Sheridan’s guidance to his army implenting it are in about the same league as Sherman. The idea was to make the Valley inhospitable to Jubal Early & Co. and to destroy the "Granary of the Confederacy."

IIRC, The Duke and Sergeant-Major Quinncannon (Victor McLaglen) had rode down the Shenandoah together and burned The Duke's wife's plantation. Maureen O'Hara's character was holding a bit of a grudge about that.

[Bob's World]

As Lincoln said when Grant laid out his plan, "Those not skinning can hold a leg."

While the majority position is that Meade was the one skinning and Sherman one of several "holding a leg" I suspect that it might well have been the other way around. That Sherman, the most trusted Lieutenant with the most trusted Army was the one skinning (“You I propose to move against Johnston’s army, to break it up, and to get into the interior of the enemy’s country as far as you can, inflicting all the damage you can against their war resources.")

And it was the less trusted Meade and Army of the Potomac, closely supervised by Grant personally, (“Lee’s army is your objective point. Wherever Lee goes, there you will go also.” ) that was holding a leg.

Defeating Lee's army was an essential task; but the most critical task was arguably Sherman's to execute. I think this is one reason why to this day it is also the most controversial aspect of that long and bloody war. I think Southerners understand inherently that it was not the capture of Richmand or the defeat and subsequent surrender of the Army of Northern Virginia that defeated them, it was the hard, cold realization of Sherman's march that "The South" as a whole was defeated as well.

When an undefeated Germany Army marched home to an undefeated German populace at the end of WWI I suspect that both Grant and Lincoln would have offered that "this isn't over yet..."

[slapout9]

Sherman new Strategy=Targeting and to do it right you need a map of the System. He had special Tax map made of Georgia showing the Richest people and the richest counties in Geogia and then in proper Military fashion Uncle Billy made em howl!!

[Pete]

I imagine that the French and Indian War presented a lot of moral dilemmas for those who wanted to adhere to the so-called "Usages of War" that were generally accepted in Western Europe at the time. They were for organized armies fighting on the plains of Flanders, dress-right-dress and close it up, dress and cover. Wilderness fighting in America between two races was much more vicious and unforgiving.

During that war Col. Washington had to send a platoon up from his 1st Virginia Regiment to investigate the massacre of a family in the village where I live. The family was dead and just like in Vietnam the wily VC had once again gotten away. On the tactical level war in the raw leads men to do what works, not what abstract moral codes tell them to do. Some things are beyond the pale -- death camps and massacres -- but I imagine battlefield situations challenge accepted notions of right and wrong.

[Pete]

Thomas "Stonewall" Jackson had such limited social skills that today some would think he was autistic or somewhere on the autism spectrum, like Alan Turing at Bletchly Park. John S. Mosby shot the the town bully in Charlottesville, Virginia when he was a student there at the University of Virginia in the 1850s. At the time Mosby weighed 110 pounds and the bully was 200. They said Sherman was insane and Grant was a drunk.

The modern-day selection standards for serving as an officer would have filtered out many of the finest combat leaders of the Civil War. When one lists the essential qualities of being a combat leader being a nice guy is nowhere on anyone's list of the top ten attributes.

[Rifleman]

This is a broad generalization, but:

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

Look at the two famous green dragoons from an earlier war: Banistre Tarelton and Henry Lee.

One account of the "Waxhaws Massacre" says Tarelton had a horse shot out from under him during the initial attack. His troops saw their commander go down and went wild. They cut down men trying to surrender before Tarelton could remount and get them under control. So Tarelton is remembered for "Tarelton's Quarter" which is to say no mercy.

Lee's Legion wore green uniforms similar to Tarleton's British Legion. They once overtook some Loyalists by surprise who thought Lee was Tarelton until the last minute. An incident similar to Waxhaws happened with Lee's men out of control and cutting down men who may have been trying to surrender. And Lee didn't have the excuse of trying to remount and gain control of troops that thought their commander had gone down. Historian Robert Bass commented, "The quality of Lee's mercy here was far worse than Tarleton's at the Waxhaws."

These two men seem to have been strikingly similar in many of their experiences and operational methods. Yet, "Bloody Ban" is remembered as a villain and "Light Horse Harry" as a hero.

[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