Command Responsibility and War Crimes: general discussion

[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

[davidbfpo]

This thread's title 'Was William T. Sherman a war criminal?' which covered this thread's discussion, but in August 2013 it became a wider topic and JMM99 suggested we retain this thread to discuss what is now called 'Command Responsibility and War Crimes: general discussion' (ends).

[Dayuhan]

So, if you can take a little break from hooking those huge bass , frame an indictment of Howlin' Jake Smith.

An indictment must already exist, somewhere, as Smith was tried by court martial, for the crime of "conduct to the prejudice of good order and military discipline". He was found guilty; the court recommended that he be admonished.

Smith's case is widely cited, largely because it was formally investigated and formal evidence was obtained, both during Maj Waller's trial and Smith's own trial. The specific orders that became items of contention were the order to "kill and burn", the instruction to take no prisoners, and the designation of anyone over 10 years of age as capable of bearing arms. These orders were established by the testimony of Maj Waller and other witnesses. Whether those orders would justify prosecution for war crimes, rather than for "conduct to the prejudice of good order and military discipline", I'm not qualified to say.

In many other cases the evidence is not sufficient to establish a retrospective "verdict" in any legally satisfactory state. Certainlyu there are enough surviving accounts to establish that torture was widespread, and that prisoners and the wounded were systematically executed. Frederick Funston, among others, is described in various accounts as having specifically ordered the killing of prisoners.

This quote, from a Major Cornelius Gardener, the Army's Provincial Governor of the Tayabas province (1902) always struck me as alomost "pop-centric", and an echo of views to come...

"Of late by reason of the conduct of the troops, such as the extensive burning of the barrios in trying to lay waste the country so that the insurgents cannot occupy it, the torturing of natives by so-called water cure and other methods, in order to obtain information, the harsh treatment of natives generally, and the failure of inexperienced, lately appointed Lieutenants commanding posts, to distinguish between those who are friendly and those unfriendly and to treat every native as if he were, whether or no, an insurrection at heart, this favorable sentiment above referred to is being fast destroyed and a deep hatred toward us engendered.

The course now being pursued in this province and in the Provinces of Batangas, Laguna, and Samar is in my opinion sowing the seeds for a perpetual revolution against us hereafter whenever a good opportunity offers. Under present conditions the political situation in this province is slowly retrograding, and the American sentiment is decreasing and we are daily making permanent enemies."

War crimes? You're the lawyer. Bad policy? Retrospectively, maybe not, as the "permanent enemies" did not in fact appear. Thrashing the enemy into submission, as we've seen in Sri Lanka much more recently, is effective, if you can do it.

Clips of a period document, just out of interest:







A wider indictment, also of the period, can be found here:

http://en.wikisource.org/wiki/Secret...ippine_Warfare

These certainly involved some cherrypicking, but are not without interest:

http://historymatters.gmu.edu/d/58/

I would be interested to see a serious study comparing attitudes toward these matters in "peer conflicts" such as the civil war and in wars fought against "savages", widely viewed at the time as being essentially members of another species. From the US perspective that would mean the Native American wars and the Philippine-American War... maybe Steve Blair could provide some cases from he former. Certainly any such examination could also look at Europe, and compare attitudes and practices prevalent in conflicts among Europeans with those pitting Europeans against Kipling's "lesser breeds without the law".

[ganulv]

I would be interested to see a serious study comparing attitudes toward these matters in "peer conflicts" such as the civil war and in wars fought against "savages", widely viewed at the time as being essentially members of another species. From the US perspective that would mean the Native American wars and the Philippine-American War... maybe Steve Blair could provide some cases from he former. Certainly any such examination could also look at Europe, and compare attitudes and practices prevalent in conflicts among Europeans with those pitting Europeans against Kipling's "lesser breeds without the law".

Colonel Chivington at Sand Creek comes to mind.

[jmm99]

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.

[Dayuhan]

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.

I didn't intend to suggest that you'd have an interest in either defending or prosecuting him, only to acknowledge that while I've an interest in the history, I have 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. On that score your opinion would mean a good deal more than mine.

[ganulv]

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.

There are so-called opinions that are unsupported assertions and there are so-called opinions supported by evidence. Any one of the former is just as good as any other of the former. The same can’t be said about the second category.

One could argue that it’s turtles all the way down and that all evidence is only so-called and assertional. That’s too Ingsoc for my tastes, though.

[jmm99]

Regards

Mike

[jmm99]

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.

151. Individual Responsibility

Rule 151. Individuals are criminally responsible for war crimes they commit.

152. Command Responsibility for Orders to Commit War Crimes

Rule 152. Commanders and other superiors are criminally responsible for war crimes committed pursuant to their orders.

153. Command Responsibility for Failure to Prevent, Repress or Report War Crimes

Rule 153. Commanders and other superiors are criminally responsible for war crimes committed by their subordinates if they knew, or had reason to know, that the subordinates were about to commit or were committing such crimes and did not take all necessary and reasonable measures in their power to prevent their commission, or if such crimes had been committed, to punish the persons responsible.

154. Obedience to Superior Orders

Rule 154. Every combatant has a duty to disobey a manifestly unlawful order.

155. Defence of Superior Orders

Rule 155. Obeying a superior order does not relieve a subordinate of criminal responsibility if the subordinate knew that the act ordered was unlawful or should have known because of the manifestly unlawful nature of the act ordered.

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.

[Polarbear1605]

A war crime is a direct command responsibility. Sadly, the country that is best at deflecting that responsibility is the US and its military, specifically its general officers. Was Abu Grab really the responsibility of seven junior Army reservist NCOs? US general officers confuse the LOW (Laws of War) with the ROL (Rule of Law) and they do it for political purposes. The sad part is it undermines their chances for strategic success. The US Marine Corps Commandant is in all kinds of hot water because he did not follow the UCMJ nor the LOW. Instead he went the political route.

http://www.marinecorpstimes.com/arti...d-IG-complaint

The senior US military leadership is running a political cover up for bad military strategic policy and thinking. Here is yet another example:

http://www.fayobserver.com/articles/...1?sac=fo.local

For any military officer, former, active or retired to place blame on the “lawyers” demonstrates a failure in leadership.

[davidbfpo]

I am not sure what happened in a number of recent posts, but we meandered away from our normal high standards of respect for each other.
Thank you, now please carry on.

[jmm99]

Still, the Clint Lorance case was probably not as simple as the newspaper makes it (Lorance being painted as something of a mini-Lt. Calley). I did a bit of Googling and read other accounts of the events which paint quite a different picture. Of course, there may well have been two or more divergent factual accounts before the court members - not unusual in these cases where we have civilians and "civilians", combatants and "combatants".

If I were a member of the court, I would have taken this statement of Lorance very negatively to him (via a number of possible meanings hidden in its ambiguity):

Before he was sentenced, Lorance told the jury he respected the verdict.

"I take full responsibility for the actions of my men on 2 July, 2012," Lorance said.

What the hell does that really mean ? I suspect it was simply a version of the non-apology apology so popular today - and, of which I am growing tired.

In any event, one can't evaluate the Lorance case without the type of data you hooked me up with in the Haditha and Behenna cases - two different results as to "war crimes" - and, of which (the topic of international laws of war) I am also growing very tired.

I guess it gets down to whether international laws of war posts have any value added at all (the higher purpose) and any fun had (the lower purpose). I'll have to ponder that for a bit.

Meanwhile, I've one more set of blackletter rules to put together - Chapter 44 on War Crimes themselves, since I said I'd do that.

Regards

Mike

[jmm99]

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.

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.

-------------------------------------------
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:

[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

[wm]

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.

Mike,

I'll not tell you that you are wrong.
However, I will suggest (as I climb upon my soapbox) that the international laws of war are not a minimal topic. Instead, this a topic that I believe is minimalized by many so that they do not have to deal with the very ugly thing that war is. Perhaps if we were to bring it out into the open even more, people might be less inclined to allow a bunch of jingoist rhetoric or drum-thumping politicians to influence them and allow the Executive to put people (both those in uniform and the innocent civilians that are supposedly being protected) into harm's way without very good reasons. (Maybe such discussion will even raise the standards for what count as very good reasons.) If nothing else, such discussions might be less likely to become exercises in causistry, with many people responding in a way similar to how Dayuhan did earlier in this thread to torque you and Polar Bear 1605 off. (Off my soapbox now, back to re-reading Kant's Perpetual Peace).

[jmm99]

Kant's Perpetual Peace - better watch it; when you get to "Heaven", Lieber will nip at your ankles for being a "closet pacifist".

Regards

Mike