One of the most iconic paintings to depict the horrors of war is Francisco Goya’s The Third of May 1808, which depicts an incident during the Peninsular War against Napoleon in Spain.The nighttime scene of a group of Spanish civilians facing execution by a French firing squad was remarkable for its time, being utterly devoid of the patriotic glorification of war that characterized most contemporary war art. Goya based the painting on reprisals the French army carried out against citizens of Madrid in the wake of the Dos de Mayo Uprising against Napoleon’s occupation forces.

When French troops were attacked by supporters of the deposed Spanish royal family, the French commander Marshal Joachim Murat posted broadsides around the city proclaiming: “The population of Madrid, led astray, has given itself to revolt and murder. French blood has flowed. It demands vengeance. All those arrested in the uprising, arms in hand, will be shot.” Because “arms in hand” was interpreted to mean any person found with scissors, pocketknives, or shears, numerous innocent civilians were summarily shot without trial in the roundups that the French carried out in reprisal after the uprising. As many as 700 Spanish citizens were killed in the revolt and its aftermath.

Vengeance in War

Military reprisals against civilian populations have occurred throughout thousands of years of recorded history. Genghis Khan’s Mongols are said to have massacred the entire population of the Persian city of Nishapur in 1221 in reprisal for the killing of the Khan’s son-in-law during the siege. The death toll, according to contemporary chroniclers, may have been more than 1.5 million men, women, and children.

During the Peasants’ Revolt against Egyptian conscription policies in Palestine in 1834, Egyptian troops committed mass rapes and killed nearly 500 civilians when they captured the town of Hebron in their campaign to put down the uprising. When imperial Qing forces recaptured Guangdong province during the Taiping Rebellion in 1853, they massacred nearly 30,000 civilians a day. According to some histories, the total death toll from unrestrained reprisals in that province alone amounted to approximately a million people.

After the Prussian army invaded France during the Franco-Prussian War in 1871, territory under Prussian occupation quickly felt the harsh hand of military rule, and reprisals against the local population were part of the Germanic policy of military domination. When the regular formations of the French army went down in defeat, local citizen militias organized as francs-tireurs initiated a low-intensity guerrilla war against Prussian forces. In retaliation, the Prussians not only summarily executed any captured francs-tireurs, but also rounded up and executed numbers of civilians unfortunate enough to reside in the vicinity of those attacks.

20th Century Conflicts

With this experience in mind, at the onset of the First World War the German army was predisposed to harsh treatment of civilians in its area of operations. In 1914, German infantry burned the Belgian town of Leuven and shot 250 civilians of all ages in retaliation for attacks on German soldiers. Hundreds more Belgian citizens in the towns of Dinant, Tamines, Aarschot, and Andenne were killed in of the reprisals.

In military history of the 20th century, Nazi reprisal operations against civilians during the Second World War are frequently cited as extreme examples of reprisal as a war crime, to the point that the very word “reprisal” is almost inextricably linked to the German military in that conflict. However, it remains an undeniable fact that even nations usually regarded as being outspoken champions of lawful warfare have stubbornly resisted the idea of completely giving up the option of carrying out reprisals, even if they did not often resort to such action in practice.

Reprisal was long regarded as an indispensable weapon in the arsenal of a nation’s ability to wage and win wars; near universal condemnation of military reprisals as a legitimate tactic is a relatively recent development in international laws of war. Looking back at Nazi war crimes during the Second World War, it is important to distinguish between the types of war crimes. The Nazi effort to exterminate Europe’s Jewish population was perhaps the most horrific example of state-sponsored genocide. On the other hand, Nazi policies such as the Commissar Order of June 6, 1941, and the Commando Order issued a year later on Oct. 18, 1942, both ordered the summary execution of all enemy combatants of certain specific type and were criminal under international laws of war because they were illegal orders. When it came to reprisals, the German military took a longstanding concept of warfare accepted by most nations and transformed it into something that far transgressed the original idea of mutual restraint articulated in extant laws of war. The way in which German forces conducted military reprisals graphically illustrate the danger that faced any nation that clung to the idea that reprisal was a legitimate tactic of war.

Defining War Crimes

The reasons why reprisals continued to be defended in laws of war as long as they did, even if most nations were careful to describe them as a measure of last resort, was because they were believed to be necessary in two particular tactical situations: to respond to an enemy’s violation of the laws of war, a response in kind in order to force one’s foe back into lawful belligerency; and to retaliate against an elusive, irregular enemy who could not otherwise be engaged by conventional means of combat.       

These were exactly the arguments made in both American and British concepts of laws of war well into the 20th century. As the American Rules of Land Warfare on the eve of the Second World War stated “…commanding officers must assume responsibility for retaliative measures when an unscrupulous enemy leaves no other recourse against the repetition of barbarous outrages.” The British Manual of Military Law of the same era declared that reprisals “are by custom admissible as an indispensable means of securing legitimate warfare.”

What neither code stipulated, however, was any measure of proportionate response. As the German military demonstrated all too often between 1939 and 1945, any doctrine that allowed reprisal without explicitly linking its implementation to limited, proportionate response was a recipe for the worst kinds of atrocity. In 1948 the United Nations War Crimes Commission suggested that one reason why the Second World War saw such flagrant violations of previously existing laws of war was perhaps because “the institution of reprisals which, though designed to ensure the observance of rules of war, have systematically been used as a convenient cloak for disregarding the laws of war…” That accurately described the German use of reprisals during the Second World War. Almost immediately from the beginning of Nazi occupation of conquered territories during the war, it was clear that reasonable restraint and proportionate response would be completely ignored. In German reprisal operations, regardless of whether the action was carried out by the SS or Wehrmacht units, restraint was never in evidence.

When French Resistance operatives assassinated a German naval cadet in Paris in 1941, Nazi occupational authorities put up posters all over the city declaring an official policy stating that 10 French citizens would be executed for every German soldier killed. Even that arbitrary limit was meaningless, because when a senior German officer was killed a short time later, the Germans seized 50 French civilians at random and shot them all, warning that if the assassins were not identified another 50 Frenchmen would be executed. When the deadline passed, the Germans shot another 50 civilians. In that instance, regardless of the stated reprisal policy of ten to one, the ratio of lives destroyed was 100 to one, each an innocent civilian who had no connection to the act that precipitated the reprisal.

Reprisal on the notional scale of 10 to one occurred in other Third Reich reprisals. The same calculation was used after a partisan bomb in Rome on March 23, 1944 killed thirty-two people, most of them members of the SS Police Regiment Bozen. The local German commander, Luftwaffe Generalmajor Kurt Mälzer, ordered that 330 Italians were to be executed in reprisal for the attack, a number that represented 10 victims for every person killed in the bombing (even though five people killed in the incident were themselves Italian civilians). The day after the partisan attack, in an incident remembered as the Ardeatine Massacre, 335 Italian citizens were shot in groups of five by SS officers in the Ardeatine Caves outside Rome. The youngest victim was 15; the oldest was 74. The disparity between Mälzer’s chosen number and the additional five people murdered in the operation was because when five prisoners in excess of the expected count were mistakenly delivered to the massacre site, the Germans simply shot them along with the others.

The International Military Tribunal

In an earlier incident that underscored the degree to which the German military could disregard even notional concepts of proportionality, the Germans perpetrated a more savage act of reprisal at Kragujevac, Serbia, in October 1941. After a partisan attack killed 10 German soldiers and wounded 26 others, soldiers of the 717th Infantry Division summarily shot 300 random civilians. Over the following five days a district-wide retaliation resulted in the executions of another 1,755 people, including 19 women. This brutality was possibly prompted by the issuance of the “Communist Armed Resistance Movements in the Occupied Areas” decree, signed a month earlier by Generalfeldmarschall Wilhelm Keitel, head of the Supreme Command of the Armed Forces, who was later tried for war crimes by the International Military Tribunal at Nuremberg. That order specified that on the Eastern Front, 100 hostages were to be shot for every German soldier killed and 50 were to be shot for every soldier wounded. The resulting Kragujevac massacre caused the deaths of nearly 2,800 Serbs, Macedonians, Slovenes, Romani, Jews, and Muslims. When the initial roundup of hostages did not turn up enough adult males, 144 high school students were seized and shot. German troops had carried out reprisals in earlier wars, but never occured on such a homicidal scale as under the Nazi regime. After 1914 the German word “Schrecklichkeit,” which can be understood as “terror,” entered the lexicon to describe these actions against civilians. The massacres of Lidice in Czechoslovakia, Oradour-sur-Glane and Maillé in France, Wola in Poland, and Sant’Anna di Stazzema in Italy, are only five on a long list of atrocities the Nazis carried out in the name of military reprisals.

The International Military Tribunal and other war crimes tribunals that took place following the Second World War represented a seismic shift in how reprisals were considered under international laws of war. Reprisal continued as an option in lawful warfare, but in much more carefully delineated form. As the Practical Guide to Humanitarian Law explains, “It is important to distinguish between reprisals, acts of revenge, and retaliation. Acts of revenge are never authorized under international law, while retaliation and reprisals are foreseen by humanitarian law.”

The essential distinction in that statement is that reprisals against civilians are now considered to be in the nature of revenge, and therefore never legal. “In times of conflict,” as current legal opinion holds, “reprisals are considered legal under certain conditions: they must be carried out in response to a previous attack, they must be proportionate to that attack, and they must be aimed only at combatants and military objectives.” Limited reprisals against soldiers, however, still remain in the realm of extreme possibility.

The U.S. Civil War

This is not a new idea. During the American Civil War, when the Confederate States threatened to not treat captured Union soldiers as legitimate combatants if they happened to be Black men, the United States issued the Retaliation Order of 1863. “The government of the United States will give the same protection to all its soldiers, and if the enemy shall sell or enslave anyone because of his color, the offense shall be punished by retaliation upon the enemy’s prisoners in our possession,” the Order stated. “It is therefore ordered that for every soldier of the United States killed in violation of the laws of war, a rebel soldier shall be executed; and for every one enslaved by the enemy or sold into slavery, a rebel soldier shall be placed at hard labor on the public works and continued at such labor until the other shall be released and receive the treatment due to a prisoner of war.” The fact that the Retaliation Order specifically provided for reprisals against enemy prisoners, rather than enemy soldiers on the field of combat, is the only part of that order that would violate modern restrictions on military-vs.-military reprisals.

The U.S. Civil War was also the conflict during which the German American jurist Franz Lieber transformed American military law with his revolutionary work General Order 100. As Article 27 of Lieber’s Code stated, “The law of war can no more wholly dispense with retaliation than can the law of nations, of which it is a branch. Yet civilized nations acknowledge retaliation as the sternest feature of war. A reckless enemy often leaves to his opponent no other means of securing himself against the repetition of barbarous outrage.” The point of Lieber’s position was that retaliation was sometimes necessary to prevent greater violations of lawful warfare, but also that careful restraint was indispensable. “Unnecessary or revengeful destruction of life is not lawful,” Article 68 stated, a declaration that 80 years later could have been applied to Nazi practices of military reprisals. In the interim, the U.S. Army used General Order 100 to justify reprisals on the Island of Samar during the Philippine-American War. Brig. Gen. Jacob Smith ordered his troops to “kill everyone over the age of ten [and make the island] a howling wilderness.”  

Civilians and International Laws

A detailed examination of military history shows that reprisals against civilians always exacerbates conflict and heightens resistance rather than eliminating it. The German military never managed to stamp out resistance to its occupation forces during WWII, no matter how savage the reprisals it unleashed against civilian populations. Reprisals also present the risk of an unending cycle of violence as each opposing side responds to the hostile acts. In the words of the U.S. Naval Handbook, “there is always a risk that [reprisal] will trigger retaliatory escalation (counter-reprisals) by the enemy. The United States has historically been reluctant to resort to reprisal for just this reason.”  

Of course, reluctance to engage in an act is not nearly the same thing as an outright policy prohibiting it. As the International Committee of the Red Cross observes, although “favour of a specific ban on the use of reprisals against all civilians is widespread and representative, it is not yet uniform.” Even today, with all of the advances in international conventions on lawful warfare, the United States and Great Britain still have not unreservedly committed themselves to a total ban on the use of reprisals in war.   

The United States “has indicated on several occasions that it does not accept such a total ban, even though it voted in favour of Article 51 of Additional Protocol I and ratified Protocol II to the Convention on Certain Conventional Weapons without making a reservation to the prohibition on reprisals against civilians contained therein.” Great Britain, for its part, “made a reservation to Article 51 which reproduces a list of stringent conditions for resorting to reprisals against an adversary’s civilians.” Both nations have preferred to hedge their bets and retain the option of a military tactic they might use only in the extreme but are not willing to completely forego.

Current conventions on international laws of war have made great strides in restricting the use of reprisals in war but have never succeeded in eliminating it in practice. It is doubtful that the practice will ever completely disappear from the world’s battlefields, though it is to be hoped that such actions will increasingly be regarded as war crimes rather than legitimate combat.

this article first appeared in military history quarterly

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When the Second World War in Europe ended in May 1945, the United States military had custody of a staggering number of enemy prisoners of war: 4.3 million total worldwide, with more than 400,000 held in prison camps inside the domestic United States. German personnel represented the single largest group of prisoners. However not every soldier in German uniform who fell into American hands—whether through capture, surrender, or exchange of custody with another ally—was actually a German citizen.

Between 1939 and 1945, tens of thousands of Frenchmen, Poles, Dutchmen, and Norwegians wound up in German uniform, either voluntarily or through coercion. Nearly a million Soviet citizens, ethnic Russians, Ukrainians, and Cossacks had served in the German military for a myriad of reasons, plus many more millions of captured Soviet soldiers held as prisoners of the Germans were now in American or British hands; it was they who would represent one of the thorniest problems among the former allies in the war’s aftermath.

Forced Repatriation?

Prisoner of war issues during WWII were at least notionally governed by the 1929 Geneva Convention Relative to the Treatment of Prisoners of War, but the conduct of Germany, Japan, and the Soviet Union demonstrated all too clearly the limitations of international conventions and laws of war. The Soviet Union was not a signatory to the 1929 Convention; Japan signed it but never ratified it; Germany was a full signatory. The legal distinction between them was largely irrelevant, because those three nations were categorically guilty of the worst treatment of prisoners of war of any belligerents during that conflict.

As many as 3 million Soviet soldiers died in German captivity. Japanese treatment of captured Allied soldiers was infamously brutal, with a death rate estimated at 27.1 percent among prisoners of Western armies (the mortality rate for American POWs in Japanese hands was more than 30 percent). Japanese treatment of Chinese prisoners was even worse, with a nearly 100 percent death rate—only 56 Chinese prisoners were officially recorded as being released from Japanese custody at the end of the war, for the grim reason that Imperial Japanese forces killed most Chinese prisoners outright. The Soviets, at the end of the war, held as many as 3,060,000 German POWs. How many of those men died in captivity is debated, but of the 1.3 million German military personnel listed as missing in action, the vast majority of them are assumed to have died as Soviet prisoners. More than 50,000 Japanese POWs perished in Soviet prison work camps after the war was over.

The end of the conflict precipitated one of the most controversial episodes related to international conventions on prisoners of war: the question of forced repatriation. 

The 1929 Convention stipulated that “repatriation of prisoners shall be effected as soon as possible after the conclusion of peace.” What it did not account for, or at least did not anticipate, was how a nation should handle prisoners of war who did not want to return to their nation of origin. 

At the Yalta Conference in February 1945, the Soviets insisted that all Soviet citizens held as prisoners of war by the Germans or liberated from German custody by the Western Allies were to be repatriated without exception. After Germany invaded the Soviet Union with Operation Barbarossa in 1941, the Soviet government announced a policy that labeled all its soldiers who fell into enemy hands—whether by capture or surrender—as traitors. Order 270 issued August 16 that year, explicitly stated that Soviet soldiers’ only option was to fight to the last. To be taken prisoner, especially if one was a commander or political commissar, would be equated with desertion and defection to the Nazis. Stalin supposedly said, “There are no Soviet prisoners of war, only traitors.” With that attitude in mind, Soviet insistence on repatriation of their captured soldiers did not sound particularly benevolent.

More than 800,000 Soviet soldiers had in fact changed sides once in German hands for a variety of reasons. After the grim years of the Great Terror of the 1930s and Stalin’s purge of the Red Army before the war, there was no shortage of Soviet citizens in the military who loved the Motherland but genuinely hated Stalin and the repressive USSR government. Stalin was especially unpopular among Ukrainians, Cossacks, and other ethnic groups who had suffered in the years following the Bolshevik victory in the 1917-1923 Russian Civil War.

Some senior Red Army officers, such as Lt. Gen. Andrey Vlasov, seem to have become turncoats for self-serving reasons, but led thousands of rank-and-file soldiers into peril. Other Soviet soldiers in German custody, faced with near-certain slow death by starvation and slave labor in prisoner of war camps, chose what seemed to be the lesser of two evils and signed on for what they were told would be labor battalions in German service, only to find out too late that they were deployed as frontline combat formations or as guards in Nazi death camps. 

A Promise at Yalta

The problem was that when the Soviets at Yalta extracted the promise from their British and American counterparts to repatriate all Soviet citizens, there was no consensus as to who fit that definition. The Soviets insisted that persons from the Baltic States and eastern Poland, annexed by the USSR in 1939-1940, were Soviet citizens, but neither the U.S. nor Great Britain recognized that claim. Nor had the Allies anticipated the problem of what to do with Soviet prisoners who did not want to return. The 1929 Convention made no provision for that situation, and it did not specifically allow a detaining power to grant asylum to prisoners in its control who asked to not be returned to their country of origin. 

As the war drew to its close, British and American officials, in both the civilian governments and military command structures, were confronted by this question: did the uniform a soldier wore determine the nation to which he should be repatriated? If a Soviet citizen fought in a German uniform and was captured as a German soldier, did the Geneva Convention say he was a member of the German armed forces and protected by that service as a prisoner of war, or was he a Soviet combatant who should be returned to his country of origin?

Legal specialists in the British Foreign Office argued “it was the uniform that determined a soldier’s allegiance and no government had the right to ‘look behind the uniform’ of any POW.” Part of the thinking behind that decision was a desire to avoid reprisals against British and American prisoners still in German control.

Unfortunately, they also had to worry about the risk their countrymen then in German POW camps faced from their own ally, the USSR. As Soviet forces advanced in the east and began overrunning German prison camps containing American and British prisoners, Britain and the U.S. wanted to do nothing that might cause the Soviets to delay the repatriation of those men. Previous Soviet behavior had repeatedly demonstrated this was no idle concern. Anthony Eden, the British Foreign Secretary, told Churchill, “It is most important that they [British POWs] should be well cared for and returned as soon as possible. For this we must rely to a great extent upon Soviet goodwill and if we make difficulty over returning to them their own nationals I am sure it will reflect adversely upon their willingness to help in restoring to us our own prisoners.”

Even so, some of the language coming out of the Foreign Office in London was starkly coldhearted. As one Foreign Office official stated in an official memo, “This is purely a question for the Soviet authorities and does not concern His Majesty’s Government. In due course all those with whom the Soviet authorities desire to deal must be handed over to them, and we are not concerned with the fact that they may be shot or otherwise more harshly dealt with than they might be under English law.” This attitude did not sit well with many British military officers, but it became the policy of repatriations as the war ground to a halt.

“A Battle of Discourtesy”

The same debate caused problems between civilian and military leaders on the American side. In early 1945 Gen. Dwight Eisenhower grew increasingly frustrated with the lack of good faith cooperation from his Soviet counterparts on POW negotiations—the Soviets demanded much but conceded nothing. It eventually got so bad that Eisenhower suggested to the Chief of the U.S. Military Mission to the USSR in the U.S. embassy in Moscow, Maj. Gen. John R. Deane, that he should simply stop cooperating with the Soviets until they proved more willing to collaborate as allies should. Deane said this would be pointless; there was absolutely no chance, he said, of “winning a battle of discourtesy with Soviet officials.” 

Statesmen in Washington also grumbled about the push to give into Soviet demands on the repatriation issue. Secretary of War Henry L. Stimson vehemently opposed the idea of “turning over German prisoners of Russian origin to the Russians.” He put it bluntly: “First thing you know we will be responsible for a big killing by the Russians. … Let the Russians catch their own Russians.” The U.S. Attorney General agreed on grounds of legal precedent. “I gravely question the legal basis or authority for surrendering the objecting individuals to representatives of the Soviet Government….Even if these men should be technically traitors to their own government, I think the time-honored rule of asylum should be applied.”

But like the British, the Americans were most concerned about the fate of their own POWs who fell into Soviet control, which overrode all other issues. Edward Stettinius, the U.S. Secretary of State, expressed this clearly in a communique in February 1945 when he wrote, “The consensus here is that it would be unwise to include questions relative to the protection of the Geneva convention and to Soviet citizens in the U.S. in an agreement which deals primarily with the exchange of prisoners liberated by the Allied armies as they march into Germany… we believe there will be serious delays in the release of our prisoners of war unless we reach prompt agreement on this question.” By “agreement” he meant capitulating to Soviet demands, but there seemed no simple solution.

The Soviets knew very well their British and American allies were vulnerable on this point, and they kept the pressure on in a manner that was nothing less than outright coercion. That January, U.S. Attorney General Francis Biddle glumly told Stimson, “the Russians have already threatened to refuse to turn over to us American prisoners of war whom they may get possession of in German internment camps.” That threat was very much in plain view when Roosevelt and Churchill signed the Repatriation Agreement with Stalin at Yalta the next month.

Asylum Would not be granted

By the end of February nearly 370,000 Soviet POWs were in the custody of British and U.S. forces in Western Europe, and a great many of those were taken while wearing the uniforms of the German military. In accordance with the Geneva Convention, Allied command had at first issued orders that forced repatriation would only apply to POWs and Displaced Persons (DPs) who identified themselves as Soviet citizens. That arrangement did not last long.

On May 23, representatives of the Soviet High Command and Supreme Headquarters Allied European Forces signed the Leipzig Agreement, which specified that, “All former prisoners of war and citizens of the USSR liberated by the Allied Forces and all former prisoners of war and citizens of Allied Nations liberated by the Red Army will be delivered through the Army lines to the corresponding Army Command of each side.” The operative word was “all.” Washington passed instructions on to its military commanders in Europe that they were to hand all Soviet citizens over to the custody of the Red Army “regardless of their individual wishes.”

Asylum would not be granted, not even for persons whose status all but guaranteed that they would be executed as traitors when they were returned to Soviet control. Mass repatriations followed, and by the end of September 1945, 2,034,000 former prisoners identified as Soviet citizens were given over to the Red Army, sometimes by use of military force.

Nothing in the 1929 Geneva Convention provided for the forced repatriation of prisoners who did not want to return to their government’s control, so the American and British decision to comply with Soviet insistence on the matter was not compelled by law or treaty obligation. It was, instead, an unpopular course of action driven by the need to protect their own soldiers from an ally whose brutality was in some cases nearly as bad as that of their common enemy. 

Refusal to Release Prisoners

By citing the 1929 Geneva Convention in its insistence that Britain and the U.S. had to repatriate all Soviet prisoners whether they wanted to return or not, the USSR’s position was duplicitous in the extreme. The Soviets had refused to join the Convention themselves, but that did not prevent them, during the Yalta negotiations, from pointing to Article 75 with its requirement that “repatriation of prisoners shall be effected with the least possible delay after the conclusion of peace.”

The diametric contrast between the wording of that article and what the Soviets themselves did in practice was absolutely appalling. The Soviet Union kept nearly 1.5 million German prisoners of war as forced labor for an entire decade after the war ended. The last of them were not repatriated until 1955. “Fragmented archival sources,” as historian Susan Grunewald says, “imply that the Soviets primarily held onto German POWs out of economic necessity caused by the war’s destruction.” As many as 560,000 Japanese prisoners were held by the Soviets until 1950 under the same excuse. The USSR used those men to rebuild a national infrastructure damaged by the war, but such practice was directly contrary to the spirit, if not the actual letter, of the very international convention that the Soviets cited when it suited their purposes.

Soviet refusal to release their prisoners after the end of WWII directly influenced the drafting of the Third Geneva Convention of 1949 when it replaced the 1929 Convention. Article 118 (Release and Repatriation) begins with the sentence, “Prisoners of war shall be released and repatriated without delay after the cessation of active hostilities.” At that time, there was still no end in sight to Soviet delaying tactics.

The 1960 Commentary on the Convention discusses Article 118 in refreshingly simple language: “This is one of the most important Articles in the Convention and is intended to remedy very unsatisfactory situations. As a result of the changed conditions of modern warfare, the belligerents have on two occasions, and without expressly violating the provisions of the existing Conventions [of 1929], been able to keep millions of prisoners of war in captivity for no good reason. In our opinion, it was contrary to the spirit of the Conventions to prolong war captivity in this way.” It then explains in detail that the Geneva Convention (III) is interpreted to mean that forced repatriation is unacceptable, and that a Detaining Power has the right to grant asylum to prisoners it holds in any situation “where the repatriation of a prisoner of war would be manifestly contrary to the general principles of international law for the protection of the human being.” 

Both interpretations exist today precisely because of the long shadow cast by Soviet policies on the repatriation of prisoners at the end of the Second World War.

this article first appeared in military history quarterly

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Medieval chroniclers were often marvelously casual with numbers when they wrote about battles and armies, and the problem of numerical accuracy is a perpetual challenge in the study of medieval warfare. Sometimes these inaccuracies were deliberate cases of propaganda or exaggeration, but more often writers of the day simply did not know how many men an army fielded in a particular battle and either went with their best guess, or just accepted the going figure. One medieval source, however, is remarkable for the detailed accuracy of its records—the Soldier Rolls of the English Exchequer. 

In their modern digitized version, the Rolls contain 94,962 individual service records—list after list of names, dates and other information covering a period of eighty-four years from 1369 to 1453. At first glance they might seem little more than old accounting documents and interminable muster lists. On deeper scrutiny, however, the dry, repetitious figures on those pages contain a wealth of information about the structure of the medieval English army and an insight into the details of military service at the height of the Hundred Years War.

The Soldier Rolls list soldiers by their first name, last name, titled status (if any), the military rank under which they enlisted (because a man’s rank determined his pay), the captain whose muster they filled, the commander of the expedition or garrison in which they served, the years of their service, and the type of military activity (such as an expedition in France, a garrison at Southampton, or campaigns in Ireland or Scotland). Unfortunately, the timespan covered by the Rolls omits the pivotal battles of Crecy and Poitiers, which were fought in 1346 and 1356, respectively. But the Rolls reveal fascinating details about the most famous campaign in all of the Hundred Years War—Henry V’s expedition to France in 1415 and the battle of Agincourt.  

Agincourt was such a one-sided engagement that it has assumed an almost mythic status in British history, enshrined in the familiar image of lean, shabby English yeomen, road weary and worn, standing stalwartly in their ranks while the gleaming, armored mass of French chivalry opposed them across the muddy field, cutting off their route to the sea and safety. Popular versions of this story always emphasize the numerical disparity of the armies: on one side the French, numerous and overconfident; on the other the English, outnumbered and resolute. Part of the story’s enduring appeal (to Englishmen, at any rate), is the stirring imagery in Shakespeare’s line, “we few, we happy few, we band of brothers.” There is no question that the English were outnumbered that rainy October morning, but the question is, outnumbered by how many?

It is not possible to say exactly how many men Henry was able put onto the field that day, but by working backward from information recorded in the Soldier Rolls and cross-referencing that against other contemporary sources, and considering it in light of important recent scholarship by historians such as Ann Curry and Juliet Barker, it is possible to arrive at a reliable number. 

The muster rolls for the 1415 expedition list 11,285 men in Henry’s army when he sailed for France that summer. Henry laid siege to Harfleur in the middle of August and things went wrong almost immediately. A month later the city was still holding out, and the English army had begun to suffer the effects of too much time in a static position. “Exactly when the first cases of dysentery appeared in the English army…is not recorded,” one historian says, “but within a few weeks dysentery was ravaging Henry’s army. Because of “the sweltering heat of high summer, partly because many of them [the English] had to sleep on marshy ground and partly through drinking bad wine and cider and contaminated water, dysentery and probably malaria broke out.”

When Harfleur finally surrendered at the end of September, Henry’s army was no longer what it had been when it sailed from England. Juliet Barker estimates that “it is likely that Henry lost between 10 and 20 per cent of his army, which translates as something in the region of 1200–2400 men. Whatever the actual numbers, the chroniclers on both sides of the conflict were all united in one belief: more men died from disease at Harfleur than from the fighting during the campaign. These losses from combat and disease were further exacerbated by the number of men who were still alive but too badly wounded or too ill to march and fight. Many of those were sent back to England. On top of this, Henry also had to detach a portion of his army to garrison the town he had just spent more than a month fighting for. 

By these calculations, Henry had a force of about 7,000 men when he finally marched out on his chevauchée, which by that point was more of a symbolic gesture than a tactical maneuver. Straggling and desertion were problems for medieval commanders in most military campaigns, but Henry probably did not have to worry about those issues to the same degree he might have in other situations. The English were deep in the enemy’s territory, that enemy was on the move trying to intercept them, and once Henry committed his army to the chevauchée his only hope of extraction lay in reaching the channel port at Calais. Even soldiers who might normally have been tempted to fall out of the column in search of a little personal plunder were probably not as eager to do so in those circumstances. While the English army probably lost a few men on the march, those losses were not enough to drastically alter its numbers when Henry finally decided to stand and fight on Oct. 25. With all this considered, it is reasonable to say that the English probably still mustered about 7,000 men at Agincourt, allowing for a very slight variance higher or lower.  

The Soldier Rolls also have something to say about the other great popular image of the battle of Agincourt—that it was primarily a contest between English yeoman archers on the one side, and mounted French knights on the other. As numerous historians have pointed out, most of the heavy combat at Agincourt was actually on foot as dismounted ranks of English and French men-at-arms came to grips with each other, fighting and dying in the mud. The extent to which the English longbowmen were essential to Henry’s application of combined arms doctrine is demonstrated by the fact that the Rolls show a 3:1 ratio of archers to men-at-arms in his army. In part this was a financial matter. Men-at-arms cost much more than bowmen in both pay and equipment; archers were essential combat multipliers in the English way of war. The longbowmen might not have won the day single-handedly at Agincourt, but it is fair to say that Henry would have lost the battle without them.

The reason why the Soldier Rolls are so exacting in their tally of every soldier who marched with Henry’s army was because the clerks of the Exchequer were concerned with the expenditure of government funds. They had to account for every soldier receiving pay in that campaign, and they were meticulous in their bookkeeping. The medieval English government had at least one thing in common with modern governments: it needed money to function, and lots of it.  

The Soldier Rolls begin in 1369 during the reign of Edward III, a king whose financial problems were legendary. Edward borrowed, extorted, impressed, and did everything short of alchemy to raise money, but in spite of his exhaustive efforts, the constant need for more revenue vexed him throughout his reign. As one historian says, the king “raised vast sums from Lombard bankers—the Bardi, the Frescobaldi and the Peruzzi—from merchants in the Netherlands, from English wool merchants, pledging either English wool or the duties on Guyennois wine as security. Almost everyone who lent him money went bankrupt.” This overarching need for more money also created the need for better accounting and management of what monies the Crown did acquire, especially the cash raised to support the king’s perpetual wars, and the Soldier Rolls were part of that administrative process.

Reading the Rolls in the context of broader history reveals a trove of fascinating information amid the dry repetition of names and dates. The Rolls list military service in the Welsh Marches; the Scottish Marches; the Southampton Garrison; Expeditions to France in 1373–74, 1375, 1415, 1443, and 1449; Naval Expeditions in 1372, 1373, and 1378; the Standing Force in Ireland; the Portsmouth Garrison; Keeping of the Sea; Escort duties; the Standing Force in Gascony; the Berwick Garrison; the Expedition to Scotland in 1400, the Standing Force of the King’s Bodyguard in 1398, the Standing Force in Aquitaine; Reinforcements to the Calais Garrison; and the Standing Force in France in 1421.

The Commanders named in the Rolls are familiar to any student of medieval English history: Edward III; Edward Prince of Wales (famous as the Black Prince); Richard II; Henry V; Henry Percy; John of Gaunt; and others. Captains of the sub-retinues, into which men were mustered to fill local levies, include Lord Edward Dispenser, Sir Hugh le Dispenser, the Earl of Warwick, and Sir John Fastolf. Some of these names are famous in their own right and some are immortalized in literature, as is the case of Fastolf, a professional soldier and adventurer who was the inspiration for Shakespeare’s Falstaff (a character whose literary depiction, it should be noted, was a marked departure from the real Sir John’s famed bravery and martial skill). The historical John Fastolf makes his first appearance in the Soldier Rolls when he is listed as a man-at-arms with the status of Esquire in the sub-retinue of the Earl of Suffolk for Henry V’s 1415 expedition to France.

The Soldier Rolls also provide a glimpse of the structure of English society in that era.  Titles of social status are encountered frequently in the Rolls, from princes of the blood all the way down to men who were of low birth but who possessed important skills. Reading through the Rolls, one encounters dukes, earls, barons, baronets (a title of some significance in the discussion of the Crown’s efforts to raise money during this period), knights banneret, knights, esquires, gentlemen, yeomen (also listed under the Latin term valettus), masters, and clerks.

Military rank, then as now, was not only important for reasons of authority and privilege, but also because a man’s military rank determined his pay during the period of his service with the army. Since the exchequer was trying to account for every penny it was spending, its clerks meticulously recorded the working hierarchy of the medieval army. The Rolls show men listed, in descending order of pay, as men-at-arms, archers, armed Archers, archers of foot, hobelars, penoners, and crossbowmen.  

The surnames on the Rolls run the full gamut of medieval ethnography. There are residual Saxon names such as Kynggeswode and Ughtred, along with French names like Barbour, Trivet, and Bourchier. Welsh names are quite common, including ap Llywelyn, ap Madoc ap David, and one fellow who enlisted under the impressive name of Llewellyn ap Egwasorboullgh. There are partially anglicized Norman names like Fitz Henry, Fitz Hugh, and Fitz John. And there are many names that we today think of as prototypically “English,” such as Lincoln, Hill, Baker, Ford, Smith, Walker, and Greenacres. The muster rolls show that at this point in English history hereditary surnames were already well-established, but some vestiges of earlier medieval naming conventions were still in use, such as “of the.” Two men named Robert of the Hill and John of the Hill were listed as archers in the 1372 Naval Expedition.

The family connections revealed in the Soldier Rolls are also interesting for what they tell us of medieval social history. John Levenes, Senior, and John Levenes, Junior, are listed as serving together as men-at-arms as part of the Standing force in Ireland, 1371–72. The post-nominal identifiers “Senior” and “Junior” are rare in the Exchequer lists, but not entirely unheard of; the 4498 records listed for the years 1371–73 include six identifiable father-son pairs serving together, and half a dozen other men designated as Seniors or Juniors listed singly.  

Using the Exchequer records, it is sometimes possible to track a single individual through the various stages of a military career that spanned decades during which he might have served in as many as a dozen campaigns. Stephen le Scrope, who is first listed in 1372 as a man-at-arms with the status of knight in the sub-retinue of his father Sir Henry le Scrope, reappears 28 years later during the 1400 expedition to Scotland as the captain of his own sub-retinue. In the intervening years he had inherited his father’s title, with his son Stephen le Scrope the younger now enlisted under his command.

It is also possible to observe the rise of a family’s fortunes, from that of wealthy but untitled commoners, to titled members of the aristocracy. Because of Edward III’s insatiable need for money, one family in particular climbed the ladder of social rank. “The provision of money [to the crown],” one historian says, “also advanced the Hull merchant, William de la Pole, whose family rose from commoner to duke in four generations…” William de la Pole was knighted by Edward III, his son Michael de la Pole served as Chancellor of England and was created Earl of Suffolk by Richard II in 1385; the Second and Third Earls of Suffolk were his son and grandson, respectively, both also named Michael. The Soldier Rolls show Michael de la Pole, Earl of Suffolk, listed as captain of a sub-retinue in Henry V’s 1415 expedition to France.  His two sons, Michael and William, are listed in the same muster. William later became the first Duke of Suffolk and Lord Chamberlain to Henry VI.  

The de la Pole family might have improved its station by its association with the Crown, but the 1415 campaign came at a great personal cost for them. When the attempted capture of Harfleur bogged down in a siege, frustrating Henry’s hopes for a quick, decisive reduction, disease ravaged his army and Michael de la Pole, the second Earl of Suffolk, was one of the many who died of dysentery. After Harfleur finally surrendered on September 22, Henry led his rump army out on the brief chevauchée that took them to the muddy field of Agincourt. In the ranks that morning was the new Earl of Suffolk, third of that title. When the English tallied their casualties after the battle, only two peers of the realm were reported killed, one of whom was “Michael de la Pole, the young Earl of Suffolk, whose father had died of dysentery at Harfleur a few weeks earlier.” Two years later, the muster list for the 1417 expedition to France includes the name of William de la Pole, now the fourth Earl of Suffolk after his brother’s death at Agincourt. 

The Rolls also indicate what an international affair the Hundred Years War truly was. In addition to the menagerie of ethnically specific names from across the breadth of England, the Soldier Rolls also list men who were clearly not English. Sir Rhys ap Gruffydd, a Welshman, is listed both as a captain of sub-retinue and a commander in his own right in the muster list for the standing force at Milford Haven in 1377. A man named Sir Aymer de Saint Amand (who was most likely from Brittany) is carried on the rolls as a captain in the 1369 Southampton Garrison. Sir Fernan Rodriquez is recorded as a captain in the 1379 muster for Keeping of the Sea. Ferant Alfonso is tallied as a captain on the naval expedition of 1377–78.  These men were Welsh, Breton, Spanish, and Italian (or Genoese), respectively, because the Hundred Years War was never a strictly English-French conflict drawn along rigid national lines. Professional soldiers of all nations plied their trade on both sides of the war.

Possible connections to other aspects of English history are also buried in the Soldier Rolls. For instance, the Soldier Rolls list Richard Donne and John Donne as men-at-arms with the status of esquires in the 1398 muster of the Standing force of the King’s Bodyguard. There is absolutely no way to know, on the basis of this single source, whether these men were in any way related to the great metaphysical poet John Donne, who wrote his famous poetry two centuries later, but the possibility raises a tantalizing research question. And the muster list for the 1415 expedition to France lists a Sir Thomas Chaucer as captain of a sub-retinue in the service of Henry V. Sir Thomas was the son of the famous poet and author Geoffrey Chaucer, who himself had been a soldier in the retinue of Edward III during an earlier campaign in France.

Taken as a historical record, the Soldier Rolls of the Exchequer corroborate and illuminate some of the contemporary chroniclers’ accounts of events and also provide evidence for refutation, in other cases. The lists show that there was far more to the Hundred Years War than just battles – there was also administration, clerical work, garrison duty that was probably as boring for soldiers then as it has always been in every era, and long tours of military service in lonely places. 

Through it all the army’s paymasters had to account for every penny of soldiers’ pay and all the associated costs of recruiting, mustering, and provisioning an army in the field. The Exchequer Rolls provide fascinating insights into the working world of the medieval English army, and are a vivid example of how a compilation of straightforward, simple facts can illuminate history in ways that transcend the mere recording of information.

this article first appeared in military history quarterly

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Even before Operation Barbarossa, Germany’s invasion of the Soviet Union began in 1941, several orders from the Oberkommando des Heeres (OKH), the German Army High Command, made it apparent that the campaign in the East was to be a conflict untrammeled by the laws of war. All of these orders either originated with Adolf Hitler personally or were issued with his full knowledge and approval. The OKH’s Chief of Staff, Gen. Franz Halder, kept a detailed diary during the planning stages of Barbarossa. In his diary entry for March 13, 1941, Halder wrote that Hitler spoke of the need for an “extermination of entire grades of society” once Soviet territory was under German control. Four days later, according to Halder, Hitler took that line of thinking even further. “The intelligentsia established by Stalin must be exterminated,” the Führer said, adding that “the most brutal violence is to be used” against the Soviet Union. What Hitler meant by the phrase “most brutal violence” was soon spelled out in several formal directives, one of which was the infamous Kommissarbefehl, or Commissar Order.

When Germany unleashed its invasion of the Soviet Union on June 22, 1941 in Operation Barbarossa, its war against the Soviet Union immediately took on stark contrasts with the conflict already underway in the West. In numeric terms, Barbarossa was the largest ground invasion ever mounted in the history of warfare. It was also the bloodiest theatre of the Second World War, with more than 5 million military casualties: Germany and its allies of Italy, Finland, and Romania lost more than 1 million men combined; Soviet losses tallied nearly 4 and a half million. Those casualties also underscored the other grim reality that marked the Eastern Front as ideologically different from the rest of the war. As many as 2 million Soviet soldiers died not in combat but as prisoners of war under deliberate policies of starvation and neglect when the Germans refused to accord them the protections guaranteed as legitimate prisoners of war. Even more damning on the ledger of German war guilt, however, were the tens of millions of Soviet civilians killed as a result of Nazi policies such as ethnic cleansing, collective reprisals, and outright genocide.

International laws of land warfare applied to the war in the East as much as they did in the West, even if the belligerent nations ignored them. The Soviet Union was not a signatory to the 1929 Geneva Convention on Prisoners of War and had not accepted the Hague Convention it inherited from the imperial Russian government that existed before the USSR came into existence. Germany was a signatory of both treaties and so was legally obligated to abide by the Convention’s restrictions. As Article 28 made clear, “In case, in time of war, one of the belligerents is not a party to the Convention, its provisions shall nevertheless remain in force as between the belligerents who are parties thereto.” In legal terms, Germany did not have the option of disregarding the requirements of lawful war, no matter its enemy’s stance on the matter. For the Soviets’ part, their refusal to join the Convention may have had more to do with communist revolutionary xenophobia and a paranoia about foreign influences than any explicit intent to murder prisoners of war in any future conflict, but it suited Nazi ideology to couch it in those terms.

Commissars, known in Russian as politruks (Politicheskiy rukovoditel), were the political officers of the Soviet Army. In a military system that prioritized political indoctrination over mere military capability, the commissars were embedded at every level of the army. As ideologically reliable Communist Party functionaries, they were responsible for educating the rank and file in correct doctrine while ensuring that any hints of dissension or reactionary thinking were quickly reported and dealt with. As serving officers, uniformed and marked with conspicuous insignia, they were legitimate soldiers even if their role was more political than military. To the Germans they represented a pernicious threat.

For Nazi Germany the war against the Soviet Union was not just a war between states. It was a war between the intractably hostile ideologies of fascism and communism, and each regarded the other as its mortal enemy. It was also a war between entire groups of humanity, as Reichsführer Heinrich Himmler made clear in his “Memorandum on the Treatment of Alien Peoples in the East,” issued on May 25, 1940. The people in the territories of German conquest, according to Himmler, “comprise a permanently inferior population…” who Himmler believed would be useful as a slave labor force; if they were not needed for that function, then they would be eliminated. But one political class, in all its forms, was to be exterminated summarily and without question: the Soviet Army’s political commissars.

This mindset permeated all levels of German command, both military and political. Three weeks before the launch of Barbarossa, Hitler addressed a meeting of senior commanders at the Führer Headquarters. According to Halder’s notes, Hitler told the assembled field marshals and generals: “The war against Russia will be such that it cannot be conducted in a knightly fashion. This struggle is one of ideologies and racial differences and will have to be conducted with unprecedented, unmerciful, and unrelenting harshness. All officers will have to rid themselves of obsolete ideologies… I insist absolutely that my orders be executed without contradiction. The commissars are the bearers of ideologies directly opposed to National Socialism. Therefore the commissars will be liquidated.” There is no doubt that Hitler clearly knew this was a criminal order because he went on to say, “German soldiers guilty of breaking international law… will be excused. Russia has not participated in the Hague Convention and therefore has no rights under it.” This was reinforced by the so-called Barbarossa Decree of May 13, 1941 which stated: “Collective drastic action will be taken immediately against communities from which treacherous or insidious attacks against the Wehrmacht are launched…” and added, “For acts which members of the Wehrmacht or its retinue commit against enemy civilians, there is no compulsion to prosecute, even when the act represents at the same time a military crime or offense.” These instructions were nothing less than a carte blanche for war crimes.

The Kommissarbefehl, or Commissar Order, was issued on June 6, 1941. The directive was couched in explicitly ideological terms, and seems to have been worded in anticipation that Wehrmacht officers might protest that it contradicted established laws of international warfare. The Kommissarbefehl instructed German soldiers to remember two things: “1.) That in this fight it is wrong to trust such elements [commissars] with clemency and consideration in accordance with International Law. They are a menace to our own safety and to the rapid pacification of the conquered territories. 2.) That the originators of the Asiatic-barbaric methods of fighting are the political commissars. They must be dealt with promptly and with the utmost severity.” To remove any question as to what that meant, the order insisted that all Soviet Army commissars “must, on principle, be shot immediately… those commissars will not be recognized as soldiers; the protection granted prisoners of war in accordance with International Law will not apply to them.”

These policies already existed in broad strokes, because the “Guidelines in Special Areas to Instructions No. 21 (Case Barbarossa)” directive issued before the invasion made a point of spelling out the necessity of close cooperation between the Wehrmacht and the Einsatzgruppen and Sonderkommandos of the SS in the Eastern theatre of operations. The regular army was expected to be an active participant in the effort to “neutralize at once leading Bolsheviks and commissars.” But this order, which specifically required the military to violate long-established laws of war, presented German commanders with a moral dilemma. As was so often the case with war crimes prosecution after Germany’s defeat in 1945, the question of guilt at the operational end quickly came down to the problem of determining who knew what, knew it when, and who obeyed orders they knew to be criminal.

The official draft of the Kommissarbefehl issued on June 6, 1941 was marked “top secret for general officers only” and dissemination down to subordinate commanders was authorized to be done only by “word of mouth.” The Nazi high command was not keen on the order’s existence being widely known, certainly not internationally. As one German historian, Hans-Adolf Jacobsen, says, “There was never any doubt in the minds of German Army commanders that the order deliberately flouted international law; that is borne out by the unusually small number of written copies of the Kommissarbefehl which were distributed.” German war records indicate that the Commissar Order was distributed to the senior commanders of at least 340 separate operational units, but how it was handled after that depended largely on the individual commanders who received it. As one study in 1956 noted, “Some divisional corps commanders and possibly one or two army commanders had neglected to pass the order on.” If indeed that is true, then it bears noting that in both legal and moral terms, quietly refraining from passing on an unlawful order from higher headquarters is not nearly the same thing as publicly refuting it or formally protesting its issuance.

Within the Wehrmacht, resistance to the Commissar Order was muted, at best. The OKH chief, Field Marshal Walther von Brauchitsch, assured uneasy generals on the eve of Barbarossa that he would mitigate the severity of the Führer’s directive. Halder, who was close to Hitler throughout the war but was also at least peripherally in support of conspiracies to assassinate him, threatened to resign in protest over the Kommissarbefehl. In the end, neither Brauchitsch nor Halder carried through with their opposition in any meaningful way that might have imperiled their careers, and by their acquiescence implicated themselves in the criminality of the order.

It is hard to determine exactly how many Soviet commissars were executed under the Kommissarbefehl. The records of the Nazi government’s Prisoner of War Office indicate that by May 1944, at least 473,000 Soviet prisoners were listed as having been “exterminated,” specifically differentiating them from the 2 million who died of starvation and systemic abuse in prison camps. It should not be assumed that all of those 473,000 were identified as politruks. Based on an assessment of German conduct in all areas of the Eastern Front, especially in 1941–42, it is probably safe to conclude that the actual number of executed commissars was higher than what was officially reported, not least because there was some confusion among the Germans as to what a commissar actually was and who might fit that definition. For that reason, the Kommissarbefehl had allowed a terrible latitude for local commanders down to the battalion level to determine, on their own, which prisoners were politruks and so should be shot out of hand.

At the High Command Trial of senior German officers conducted by the American Military Tribunal in 1948, Field Marshal Wilhelm Ritter von Leeb, who commanded Northern Army Group during Barbarossa, offered in his defense records which indicated that no more than 168 Soviet prisoners were identified as commissars and shot in his area of operations. Leeb asserted that at least 4,250 politruks were among the 340,000 prisoners taken by Northern Army Group in 1941; to have executed so few of them surely proved that he had deliberately contravened Hitler’s directive. (His estimate of the overall number, though, was based on an assumption of one commissar for every 80 regular Soviet soldiers, an overestimation not in line with Soviet tables of organization circa 1941.) Leeb’s co-defendant, Gen. Hans Reinhardt, took a different tack and insisted that reports tallying such executions were entirely fictious and that in his area of responsibility all reports of eliminated politruks were created simply to pacify his masters back in Berlin and convince them he was complying with the order. Reinhardt’s claim was contradicted by an official memorandum from 1941 written by the senior SS commander in his area, who had informed his superior, the notorious Reinhard Heydrich, head of the Reich Security Main Office, that the SS enjoyed “close and almost cordial” assistance from the Wehrmacht in operations to exterminate undesirables such as commissars and at least 221,000 Jews. Clearly, people were lying in an effort to save their own necks.

German officers who had commanded forces in war in the East had good reason to think themselves in real jeopardy over their handling of the Kommissarbefehl when they faced prosecution after the war. At the first Nuremberg Trial before the International Tribunal in 1946, Field Marshal Wilhelm Keitel, who was Chief of the Oberkommando der Wehrmacht for much of the war, produced in his defense a memorandum he had endorsed in 1941 which attempted to scale back some of the Kommissarbefehl’s procedures. What Keitel did not mention were the notes he wrote in the memorandum’s margin after Hitler rejected it, which painted his position in a rather different light. “These objections arise from the military conception of chivalrous warfare,” he had written. “We are dealing here with the destruction of a world philosophy and therefore I approve such measures and sanction them.” Keitel was condemned to death and went to the gallows under the weight of his guilt, a fate from which German officers in the later trials were keen to save themselves.

In the end, the Kommissarbefehl was one of the points on which Leeb and most of his codefendants were convicted (two men were acquitted). As Article 46 of the court’s findings stated, “Unlawful orders initiated, drafted, distributed, and executed by the defendants directed that certain enemy troops be refused quarter and denied the status and rights of prisoners of war and that certain captured members of the military forces of nations at war with Germany be summarily executed.” In the court’s determination, such actions were just some among many of the long list of war crimes and crimes against humanity of which these men were guilty. 

When it came to levying sentence against the defendants, however, the court failed to impose penalties commensurate with the terrible crimes of which they were convicted. Sentences ranged from five years imprisonment to life. Leeb was sentenced to time served, which amounted to a little over three years at that point, and was released. He died of a heart attack in 1956. Reinhardt was sentenced to 15 years imprisonment but was released on “compassionate grounds” in 1952 and died in 1963. By 1955, 10 of the 11 men sentenced to imprisonment were free; the other had died in prison a year after the trial. 

In the climate of Cold War tensions that dominated the decade after the Second World War, the Western governments seemed reluctant to dig too deeply into the criminal culpability of their former enemies because West Germany was now important in the alliance against Communism. Hitler’s illegal Commissar Order, therefore, became a convenient excuse that West Germany’s NATO allies could use to justify their ignoring any further prosecutions of the war crimes committed in 1941–45 by their new Bundeswehr colleagues.

this article first appeared in military history quarterly

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In spring 1942, Japan’s military was the virtual master of its area of operations. It had overrun most of Southeast Asia and a huge swathe of the western Pacific with startling speed after Dec. 7, 1941, and the campaigns in mainland China seemed well in hand. The Dutch and French colonial territories had fallen to the Japanese, as had the British territories of Malaya, Singapore, and Hong Kong, and besieged United States forces in the Philippines were on the verge of defeat. The Empire of Japan was ascendant. The imperial government assured its people that Japan’s Home Islands were safe from retaliatory attacks by any of the Allied powers.

That assurance was shattered at noon on April 18, 1942 when 16 B-25B Mitchell bombers, launched from the US Navy aircraft carrier Hornet, roared in over the island of Honshu, vectoring in from different points of the compass. It was a hit-and-run attack. After dropping their bomb loads on Tokyo and five other cities, the American aircraft made for the Chinese mainland, where all but one ditched or crash-landed. 

The Enemy Airmen’s Act

In terms of battle damage assessment, the Doolittle Raid did not accomplish much physical damage to high-value military targets, but the psychological effects of the mission were tremendous. It provided a major boost to American morale, both in the military and on the home front, and it shocked the Japanese out of their illusions of invulnerability.

The attack also provoked two Japanese reactions of far-reaching consequences that resulted in the deaths of thousands of people, most of whom had nothing to do with the raid. 

A month after Doolittle’s strike, the Japanese army launched the Zhejiang–Jiangxi Campaign, a reprisal operation against Chinese who had assisted Doolittle’s aircrews. The campaign also sought to deny Allied access to China’s eastern provinces, either as a launching point or escape route. Japanese forces killed more than 10,000 Chinese civilians in direct retaliation for the air raid on the home island. In the four months of the punitive operation (May–September 1942) as many as 250,000 civilians were slaughtered. 

While that death toll mounted, the Japanese government drafted official policies specifically aimed at Allied aircrews who carried out aerial attacks against Japanese targets—past, present, or future. In July 1942, the War Ministry issued Military Secret Order 2190, which stated: “An enemy warplane crew who did not violate wartime international law, shall be treated as prisoners of war, and one who acted against the said law shall be punished as a wartime capital crime.”

The wording of that directive seemed straightforward enough, citing international laws of war as the determiner of what was lawful conduct and what was criminal. However, it quickly became clear that the Japanese applied a questionable interpretation on what constituted “criminal” conduct by enemy aviators. 

Expediting executions

On Aug. 13, 1942, Gen. Shunroku Hata, the Supreme Commander of the Japanese Forces in China, issued Military Order No. 4, an edict that later became infamous as the Enemy Airmen’s Act. The four sections of the order specified that “bombing, strafing, and otherwise attacking” civilians, private properties, or non-military targets was a crime punishable by death. While the language of the order seemingly allowed for contingencies, allowing for cases where “such an act is unavoidable” (as extant international laws of war had already determined), the Japanese chose to interpret every attack against targets in their sphere as criminal instead of as acts of legitimate warfare.

The Enemy Airmen’s Act was also an ex post facto order since it stated, “This military law shall be applicable to all acts committed prior to the date of its approval.” That provision was specifically aimed at the American airmen who had flown in the Doolittle Raid.

Eight of Doolittle’s aviators fell into Japanese hands in China. They were tried by a Japanese military tribunal in a cursory trial where they were all sentenced to death, even before Military Secret Order 2190 was issued. When the Assistant Chief of Staff of Imperial Army Headquarters sent Order 2190 to Japanese forces in China, he amended a memorandum which stated, “concerning the disposition of the captured enemy airmen, request that action be deferred… pending proclamation of the military law and its official announcement, and the scheduling of the date of execution of the American airmen.”

The Doolittle Raiders

The condemned aviators were moved to Tokyo. The sentences of five were commuted to life imprisonment. The other three men—1st Lt. Dean Hallmark, 1st Lt. William Farrow, and Sgt. Harold Spatz—were executed on Oct. 15, 1942. The U.S. government knew about the executions during the war, but U.S. President Franklin D. Roosevelt suppressed the information. The Allies initiated a postwar investigation for a war crimes prosecution against the Japanese officers who conducted the trial of the Doolittle aviators. 

The Enemy Airmen’s Act was the template for subsequent edicts that the Japanese enacted against captured Allied aircrews, especially as American air raids against the Home Islands escalated in intensity and destructiveness. Between 1944 and the signing of Japan’s surrender on Sept. 2, 1945, as many as 132 Allied airmen were convicted by the Japanese in summary courts-martial, condemned to death as criminals and executed. At Fukuoka, 15 captured airmen were executed after Emperor Hirohito’s announcement of impending surrender.

This was the culmination of a practice repeated throughout the war, as the Japanese subjected captured Allied airmen to interrogations that used torture to extract confessions (usually written in Japanese without English translation), summary trials, and execution by firing squad or beheading. Yet even that perfunctory process was not enough for some senior Japanese officials.

Near the end of the war, the Commandant of the Military Police in Japan wrote an official memorandum to his subordinate commanders complaining that those field expedient trials, hasty as they were, unnecessarily delayed the executions of enemy airmen prisoners. As a direct result of that complaint, at least 90 American aviators were executed in the last weeks of the war. 

War Crimes Tribunals

After the war, Allied war crimes tribunals targeted Japanese personnel involved in the deaths of captured aviators. Senior military officers under whose authority the trials and executions of airmen were conducted were obvious targets for prosecution, but so too were rank-and-file Japanese soldiers personally implicated in the abuse and murder of prisoners of war.

Tsuchiya Tatsuo, a prison camp guard, was tried as a Class A war criminal and charged with eight specifications of torture and cruelty to prisoners. In particular Tsuchiya was accused of the prolonged torture of a prisoner named Robert Gorden Teas. Eight witnesses swore out affidavits detailing how Tsuchiya beat Teas to death over a period of five days. In December 1945, Tsuchiya was found guilty and sentenced to life imprisonment at hard labor.

In July 1946 a US Military Commission tried Lt. Gen. Harukei Isayama, former commander of the Japanese Formosan Army, along with seven of his subordinates. The charge against Isayama was that he “did permit, authorize and direct an illegal, unfair, unwarranted and false trial” of American prisoners of war, and that he then ordered a Japanese Military Tribunal to sentence those prisoners to death and ordered the carrying out of the executions. The American court charged Isayama for war crimes involving 14 American aviators shot down and captured between Oct. 12, 1944, and Feb. 27, 1945.

The earlier date was critical, because that was when the Japanese had implemented the Formosa Military Law—an edict repeating the dictates of the Enemy Airmen’s Act but applying specifically to all airmen captured within the jurisdiction of the Japanese 10th Area Army.

The Formosa Military Law declared that “the severest punishment” would be applied to enemy airmen who bombed or strafed objectives of a non-military nature, who “disregarded human rights and carried out inhuman acts,” or who entered 10th Area Army’s jurisdiction with any intent of committing such acts. All 14 trials were completed in a single day. No defense was allowed. The defendants were not permitted to speak on their own behalf. Afterwards the 14 airmen were shot and buried in a ditch on the morning of June 19, 1945.

Bombings in China

Isayama’s defense counsel (an American jurist) argued that because senior officials in Tokyo had approved the use of death penalty in the summary trials of the 14 American POWs, Isayama’s tribunal had no choice but to sentence the airmen to death. Isayama himself, his attorney insisted, was required to order capital sentences to be carried out.

The American Military Commission found the argument unconvincing. Isayama and his co-defendants were all found guilty. The Chief of the Japanese Judicial Division and the military intelligence officer who oversaw the interrogations and torture of the POWs were both sentenced to death. Both sentences were later commuted to life imprisonment. Isayama and the others received prison sentences ranging from 20 years to life.

Aside from the fact that the Japanese treatment of enemy airmen was a clear violation of extant international military law, it was also a colossal hypocrisy. Beginning in 1937 with the outbreak of the Sino-Japanese War, the Japanese military had repeatedly targeted Chinese cities with the deliberate intent of terrorizing and murdering the Chinese population. From August to December 1937, Japanese bombing raids hammered Nanjing, targeting power plants, water works, and even the city’s Central Hospital. Shanghai, Guangzhou, and Chongqing were bombed numerous times. In Chongqing alone, more than 10,000 Chinese civilians were killed in at least 268 separate Japanese air raids. In a direct connection to the Doolittle Raid, the Japanese flew 1,131 bombing attacks against Chuchow—Doolittle’s intended destination—killing 10,246 people in that city alone. 

In the Second World War, every major power conducted aerial attacks on its enemy’s civilian population. No nation could claim complete innocence of that. However, the Japanese implementation of the Enemy Airmen’s Act was war crime compounded upon war crime.

this article first appeared in military history quarterly

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What was life like for infantrymen during the Napoleonic Wars? Imagine, if you will, two different soldiers of those days: a British fusilier in 1808 and a French light infantryman in 1812. Their uniforms, equipment and weapons differ, as do their languages and personal appearances. Yet there are still some things that they have in common. The summer heat is a factor for each of them: the fusilier in Spain as well as the light infantryman in Russia as he marches toward the Battle of Borodino. Each man is sweating profusely. The straps of his pack are too thin, or the pack is too heavy for the straps, or the load improperly adjusted. Whatever the reason, weight is a constant physical presence that alternates between causing stabbing pain in the shoulders and a crushing ache in the lower back. Their individual weapons are muzzle-heavy and imbalanced, adding more weight to their already overladen shoulders. 

These men are chafed, blistered, filthy, exhausted, and smell very bad considering that they haven’t bathed in weeks. Each is tired, but that doesn’t even begin to describe the level of their exhaustion. Both are so dehydrated that pounding headaches hammer behind their eyes, and they feel sick—either because they are just recovering from a bout of dysenteric diarrhea, or because they are coming down with one.

They don’t know if their illness is caused by bad food, bad water, or both—and knowing wouldn’t make any difference. Their feet hurt due to poorly fitted shoes which are heavy and inflexible if not literally falling apart. These infantrymen on the march put one weary foot in front of the other for mile after seemingly endless mile—but they were the toughest men of their day, and this was just part and parcel of soldiering. 

When Fashion Trumped Function

Terrain, weather, and distance have always contributed to the exhausting misery that is part of infantry life in every era and war, but the things with which soldiers are laden also play a part. In the Napoleonic era, just as today, infantrymen of most armies were overloaded with a staggering amount of military equipment. Some gear was necessary and some not, at least in the opinions of the men who had to carry it.

Rfn. Benjamin Harris, who survived the grueling winter retreat to Coruna in 1809, described the British infantryman’s load as being almost more than a man could manage in those conditions. Some men could not manage and perished as a result. “The weight I toiled under was tremendous…,” he wrote, “indeed, I am convinced that many of our infantry sank and died under the weight of their knapsacks alone. For my own part… I marched under a weight sufficient to impede the free motions of a donkey…”

By his own admission, Harris was no imposing physical specimen. “Altogether the quantity of things I had on my shoulders was enough and more than enough for my wants, sufficient, indeed, to sink a little fellow of five feet seven inches into the earth.”

It was not only the sheer weight involved that proved a problem. In those times, long before the concept of ergonomics was ever applied to the design of military loadbearing equipment, infantrymen suffered from poorly arranged loads. “Nay, so awkwardly was the load our men bore in those days placed upon their backs,” Harris wrote, “that the free motion of the body was impeded, the head held down from the pile at the back of the neck, and the soldier half beaten before he came to the scratch.” 

Additionally, the most battle-tested armies of that era went into action dressed in a manner completely unsuited to the hard job of soldiering in the field. Yet the impracticality of military uniforms was not the result of a lack of experience in the physical demands of soldiering. Tradition mattered more than soldiers’ comfort, and fashion usually won over function.

Blaze de Blury was a lieutenant in the Grande Armee that marched into Russia in 1812. After the horrific retreat that destroyed most of that army and Napoleon’s ambitions with it, de Blury was lucky to still be alive to record his experience. “I have never understood,” he later wrote, “why under Napoleon, when we were constantly at war, the soldier should have been forced to wear the ghastly breeches, which, by pressing on the hams at the back of the knee, prevented him from walking easily. On top of that, the knee, which was covered by a long buttoned-up gaiter, was further strangled…”

This was the uniform of an infantry that walked everywhere across Europe. “It was, all in all,” de Blury concluded, “a conspiracy by three thicknesses of cloth, two rows of buttons one on top of the other, and three garters to paralyze the efforts of the bravest of marchers.” Impractical uniforms were not a problem for the French alone. To varying degrees every army of the period outfitted their infantry in clothing that ranged from the poorly designed to the downright absurd.

The Myths of Napoleonic Musketry

At least one ungainly piece of the infantryman’s combat load was indispensable, and that was his weapon. It might be tempting to dismiss the Napoleonic soldier’s musket as a rather simplistic weapon. After all, it was a single-shot, smooth-bore, muzzle-loading black powder firearm with incredibly primitive sights. Using it effectively was as much a matter of discipline acquired from experience as understanding how to best shoot within its limitations. It was essentially a heavy and crude point-and-shoot weapon. If firing it was a simple matter, the loading and reloading sequences were not. For French infantrymen in 1815, the musketry drill consisted of eight basic steps in loading their pieces. The British drill of the same period required 10 steps. This had a predictable effect on rates of fire.

In the chaos and smoke of massed infantry combat, a veteran unit of well-trained infantry might be able to achieve a sustained rate of fire of only three to four rounds a minute. The British—one of the only armies in the world to regularly train their infantry with live ammunition—could consistently put out rates of fire slightly better than that, but were also limited by the inefficiency of their weapons. 

The image one sometimes encounters in film and fiction of a Napoleonic-era soldier biting open a paper cartridge and holding a ball in his mouth before pouring in the powder and spitting it down the barrel is probably inaccurate. After firing just a few rounds, the muzzle of the musket was hot enough to blister skin on contact.

Accuracy with these weapons was notable for its almost complete absence. When it came to infantry firepower, all Napoleonic armies stressed quantity over quality—that is, as much massed fire as possible.

This was where discipline came into play. To maximize the effect of musketry, it was necessary for infantry to stand firm and wait until the enemy advanced perilously close before unleashing the critical first volley. In 1814, the noted British ordnance expert Maj. George Hanger wrote, “A soldier’s musket, if not exceedingly ill-bored (as many are), will strike a figure of a man at 80 yards; it may even at a hundred; but a soldier must be very unfortunate indeed who shall be wounded by a common musket at 150 yards, providing his antagonist aims at him; and as to firing at a man at 200 yards with a common musket, you may as well fire at the moon and have the same hope of hitting him.”

Hanger was an absolute realist about the standard musket’s problems with accuracy.

“I do maintain and will prove,” he wrote, “that no man was ever killed at 200 yards, by a common musket, by the person who aimed at him.”

Marksmanship doctrine of the day could be summed up simply: level your piece in the general direction of the enemy’s ranks, let fly, and hope for the best.

Wild Firing And Skirmishing

There were a few exceptions. The riflemen of the British Army’s 95th Rifles were consistently able to hit targets out to much greater ranges as the result of both better training and their specialized weapon, the Baker rifle. Aside from the obvious advantage of having a rifled bore, the Baker also benefited from using spherical, leather-patched ball ammunition that fit tightly in the barrel to give the ball a ballistic spin when fired. This greater accuracy came at the cost of a lower rate of fire—the Baker rifle took considerably longer to reload than a standard-issue smooth-bore musket. Thus rifle companies usually filled the skirmisher role. 

The Baker rifle had a bladed sword bayonet, but the British Brown Bess and the French Charleville muskets used socket bayonets when closing with the enemy battle line. Mass firing by opposing forces ranks was merely a prelude to the bayonet attack.

Firing volleys was to soften up one’s opponent. This remained the standard infantry attack tactic until the American Civil War when the new, rifled musket essentially reduced the bayonet to a “cooking utensil.”

This reduced rate of fire ironically prompted Napoleon Bonaparte to decide against issuing rifled muskets to the voltigeurs, the light skirmishers of the French army—a decision which put them at a considerable disadvantage when they faced British riflemen. Another factor in the French decision to arm all infantry with standard muskets may have been a desire to retain a measure of flexibility in their combat role.

All French infantry trained as skirmishers. Under French doctrine, a battalion of conventional infantry was expected to be able to deploy as skirmishers on command, then regroup into a column or line of battle as the tactical situation required. As one historian notes, “only the French can lay claim to the universal employment of their line infantry as skirmishers.”

Depending on the army in which they served, regular infantry in the line and grenadier regiments of the Napoleonic Wars were armed with the British Land Pattern Tower musket (the famous Brown Bess), or the French Model 1777 musket, the New Prussian Model 1809, or the Austrian Model 1798. Accuracy was not an option for any of these weapons. There were no aiming sights to speak of— just a small rectangular bayonet lug on top of the barrel near the muzzle which served as a primitive front sight.

Unlike the Baker rifle, standard infantry muskets were loaded with balls that were loose in the barrel and which would rattle around if not rammed down with wadding (the paper “cartridge” containing loose powder and the musket ball).

How British Training Foiled the French

Ammunition was the other integral part of the weapons system. A soldier could have the finest firearm ever designed, but once he ran out of ammunition it was little better than a club or a spear with the bayonet. The amount of ammunition soldiers carried varied considerably depending on the army and the soldier’s individual role, but those small, lethal cartridges of gunpowder and lead were crucial to his ability to stand and fight. No matter what else a soldier might throw away to lighten his load, the basic load of ammunition was not casually discarded. Skirmishers, operating independently, often used ammunition at a faster rate than battalions firing in command volleys.

For armies of the Napoleonic Wars, individual rounds of ammunition were issued in cartridge form, made of paper (tough, but not waterproof) which contained a lead ball and about 150 grains of loose black powder. The quality of the powder varied greatly, depending on the manufacturer. In the 95th Rifles, where individual marksmanship mattered as a professional skill, soldiers used a higher grade of powder for their rifles. When they had to settle for inferior stocks of standard-issue gunpowder, they ground down the grains to a finer strain themselves in order to improve the ballistic performance of their shots.

Other skills were essential to a soldier of that era, and most required more than just the physical conditioning of route marching or the repetition of parade-ground drilling. The fulfillment of the infantry’s role as the sharp end of the army’s spear always came down to the individual soldier’s skill in musketry—in other words, his ability to put rounds downrange as rapidly as possible, usually while under fire.

Marksmanship training, as rudimentary as it was, received lesser or greater emphasis in different armies and sometimes came perilously close to being neglected altogether. When the marching stopped and the fighting started, musketry was always the infantry’s essential technical skill.

Resilience, discipline, and courage could make all the difference in the fight.

An ability to stand firm while torn by the enemy’s fire, waiting for the crucial moment, sometimes without being able to return fire, was the factor that determined the outcome on battlefields from Austerlitz to Salamanca.

The British fielded what were probably the best-trained infantry formations in their day, at least in terms of their battle drill in musketry. Forming double lines of infantrymen firing in alternating volleys gave them a huge advantage in the amount of firepower they could bring to bear across their linear front. To achieve this in battle, the British drilled their infantry regiments with a single-minded intensity.

Crammed Columns, Poor Visibility

All armies of the day used multiple ranks of alternating fire in their linear formations, but what made British musketry so effective was the fact that British infantry fired live ball ammunition in training. Remarkably, few other armies of that era did so. That may have had something to do with economic realities—“a single round,” as one historian notes, “cost at that time almost as much as food for a full day…”

Other armies recognized the combat value of British training but could not hope to equal it. The Prussians, known for having a first-rate army in most respects, “pointed out that their own troops, even in three-deep lines, did not have the discipline, training and individual stability to hold such formations and didn’t try to use them.” 

In contrast, the French army usually advanced its infantry in massed columns, bringing the physical force of the columns to bear on an enemy’s static position which was seldom as deep, front to back. Napoleon used a “combined arms” approach—infantry and artillery—with the infantry advancing in powerful columns and then light artillery pieces brought up to literally blast holes in the enemy line. Infantry advancing in line were more apt to be thrown into disorder by terrain or obstacles, particularly if they were inexperienced or poorly trained. 

For French brigades, advancing in column was often simply the best option. Gen. Antoine-Henri Jomini, drawing on a wealth of experience in his observations, once remarked, “The French, particularly, have never been able to march steadily in deployed lines,” so the column was the standard formation in the assault. It was the principle of the battering ram against the wall. As a tactic it worked for the French time and again against armies all over Europe. 

It did not always work well against the fearsome musketry of well-led British infantry. In battle after battle in the Peninsular War, the British demonstrated that a wide front of highly trained, well-disciplined infantrymen standing their ground while firing one crashing volley after another in quick succession almost always trumped the more visually intimidating bulk of a brigade in column.

Sustained infantry combat was hard on both men and weapons. The anonymous British narrator from the 71st Regiment, remembering the savage fighting at Fuentes de Oñoro in 1811 in the Peninsular War, said that by the time that day’s battle was ended, “My shoulder was as black as coal, from the recoil of my musket…”. He had fired 107 rounds of ball cartridge that day—nearly all the ammunition he had. French soldiers also found the experience of toe-to-toe infantry combat exhausting.

Jean-Roch Coignet, fighting the Austrians in 1800, later wrote, “Their columns were constantly reinforced; no one came to our support. Our musket-barrels were so hot that it became impossible to load for fear of igniting the cartridges. There was nothing for it but to piss into the barrels to cool them, and then to dry them by pouring in loose powder and setting it alight unrammed.”

Nineteenth century infantry battle was a comparatively short-range affair, but even so an individual soldier’s view of the fight was often limited. More than one soldier commented that, in the hottest part of the brawl, dense clouds of white smoke made it all but impossible for infantrymen to see ahead or nearby. Seeing action across the field was even less likely. 

As a British veteran wrote in his account of the fighting at Waterloo, “The noise and smoke were dreadful. At this time I could see but a very little way from me, but all around the wounded and slain lay very thick.” 

Harris described much the same experience. “I myself was very soon so hotly engaged,” he wrote, “loading and firing away, enveloped in the smoke that I created, and the cloud which hung about me from the continued fire of my comrades that I could see nothing for a few minutes but the red flash of my own piece amongst the white vapour clinging to my very clothes…” A soldier’s world narrowed around him in those conditions. “Until some friendly breeze of wind clears the space around,” he wrote, “a soldier knows no more of his position and what is about to happen to his front, or what has happened (even amongst his own comrades) than the very dead lying around.” 

The Proof At Waterloo

The Battle of Waterloo was a ferocious test of military discipline for the British soldiers holding their positions. French cannon fire ripped bloody swaths through their ranks. Time and time again the British regulars obeyed the orders of their officers and NCOs to close the gaps over the bodies of their fallen comrades. They had to stand fast, firing volley after volley into the French that came up against them, maintaining the massed formations that were necessary to ward off the French cavalry that repeatedly tried and failed to break their squares. As the day wore on and their casualties mounted, even that iron discipline began to waver. 

Infantry in square presented splendid targets for artillery, and every time the French cavalry fell back, the supporting French batteries blasted killing sweeps of round shot (and canister, when the range was short enough) through the British formations. Had it not been for Wellington’s reverse-slope position sheltering his infantry from the worst effects of the French gunnery, it is fair to wonder if the British infantry could have held their ground under such sustained, direct artillery fire.

The British ability to stand firm owed to discipline and personal leadership. Thomas Morris, who fought at Waterloo with the 73rd Regiment, described a moment where an officer’s personal example was the vital antidote to the fear spreading through his regiment. 

“Once, and only once, during the dreadful carnage at Waterloo,” Morris wrote, “did the stern Seventy-Third hesitate to fill up a gap which the relentless iron had torn in their square; their Lieut.-Colonel (Brevet Colonel Harris) at once pushing his horse lengthwise across the space, said with a smile, ‘Well, my lads, if you won’t, I must;’ it is almost needless to add that immediately he was led back to his proper place, and the ranks closed up by men still more devoted than before.”

Wellington famously remarked that Waterloo was “the nearest run thing you ever saw in your life.” He was not a man given to exaggeration or hyperbole. Even some of the hardened veterans in the British ranks thought it was one of the toughest fights they had seen. Morris wrote that his sergeant-major was “a brave soldier, and had been through the whole of the engagements in the Peninsula,” but Waterloo proved beyond even his considerable experience.

In the worst part of the day at Waterloo, as casualties mounted and the British ranks were being torn apart, the sergeant-major told his colonel, “We had nothing like this in Spain, sir.” The sergeant major was deathly pale when he said it, and his use of profanity increased as the battle went on in a sure sign of his stress.

All these factors—hard marching in impractical uniforms, cumbersome weapons and repetitious drill, as well as the chaos and carnage of battle—comprised an infantryman’s life during the 12-year span of the Napoleonic Wars. Whether fighting for the British, French, or any of the other nations that made up the shifting alliances of the day, soldiers of all armies on battlefields from Spain to Russia shared the same grim view from the infantry’s ranks.

this article first appeared in military history quarterly

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In his First World War memoir Good-Bye to All That, the British poet and former infantry officer Robert Graves wrote, “I had my first experience of official lying when I arrived at Le Havre in May 1915 and read the back-files of army orders at the rest camp. They contained something like twenty reports of men shot for cowardice or desertion. Yet a few days later the responsible minister in the House of Commons, answering a question from a pacifist, denied that sentence of death for a military offence had been carried out in France on any member of His Majesty’s forces.”

It was indeed a lie. Between the beginning of the war in 1914 and the Armistice in 1918, 307 British and Commonwealth soldiers were executed by firing squad after courts-martial convicted them of cowardice or desertion, the latter charge described in very military language as “fleeing in the face of the enemy.” Included in that tally were 25 Canadian soldiers, 22 Irish servicemen, and five New Zealanders. How many Indian soldiers in British service were executed on the same charges is uncertain, but if their names were added to that grim tally the numbers would certainly be even larger.

Killed By Their Own Comrades

Numerous histories of the First World War have told how several of the belligerent nations executed men who were mentally and emotionally broken by the strain of frontline conditions, and who could endure the horrors of war no longer.

Whether because of an unwillingness to recognize the very real debilitating effects of shellshock and combat stress, or because the sheer scale and duration of that war overwhelmed military justice systems designed for shorter, smaller conflicts, the results were clear—some soldiers died not under the enemy’s guns, but in front of firing squads formed of their own comrades.

It would be too great a generalization to declare that every soldier executed on charges of desertion or cowardice was a traumatized combat casualty rather than a malingerer, but an examination of existing records suggests that at least as far as the British were concerned, it was true in a majority of cases.

The frequency with which the British Army applied the death penalty to accused deserters has garnered a great deal of literary attention since 1918, but it was never a uniquely British problem. Nor was the British Army unusually draconian in its use of capital punishment, when we compare its record to that of other nations fighting in the same war. In purely statistical terms, British soldiers who were convicted by courts-martial on charges of desertion or cowardice were actually at less risk of being executed than were soldiers of other armies.

Military Justice?

A comparison of military executions carried out by the British, French, Italian, Austro-Hungarian, and German armies reveals that the British shot 12% of men who were condemned to death, whereas the Italians shot 750 men out of the 4,028 who were condemned by their courts-martial, an execution rate of 19%. The French sentenced 2,500 men to death and shot 650 of them, or 26%. The Austro-Hungarians far exceeded every other combatant nation of that war. Out of 1,175 military death sentences, the Austro-Hungarians executed 1,148 men, a staggering 98% of those condemned.

In some armies the application of the death penalty was strictly a matter of military justice—harsh and punitive in nature, but at least enforced within the structure of law. Other nations executed men in a much more capricious fashion. Drumhead courts-martial were the most cursory form of military justice, but some commanders believed that even those headlong rushes to the ultimate punishment were an unnecessary indulgence.

As some historians have noted, the Italian army of the First World War was marked by a “regime of unremitting harshness,” a culture which owed everything to the attitude of its commander-in-chief, Gen. Luigi Cadorna.

Back to Ancient Rome

Cadorna held a very poor opinion of his army’s conscripted soldiers, and he believed that only the frequent use of the harshest punishment could enforce discipline in their ranks. Italian courts-martial were already encouraged to use the death penalty with great frequency, but for Cadorna even that was too lenient. He preferred summary executions without trial. In a 1917 report to his government in which he laid out his efforts to correct morale problems among frontline units, he wrote, “It has been necessary to resort to immediate executions, on a vast scale, and to renounce forms of judicial proceedings, because it is vital to cut off evil at its roots, and it is to be hoped that we have done so in time.” 

In 1916, Cadorna went so far as to implement the ancient Roman practice of decimation, applying it to Italian regiments that gave up ground or failed to press their attacks vigorously enough. First described by the Roman historian Polybius in the 3rd century bce, and used to brutal effect by Marcus Licinius Crassus during the Third Servile War in 71 bce, decimation was the horrific practice of disciplining a disgraced unit by having one man out of ten executed, usually by his comrades.

Drawing on that historic example, Cadorna ordered that soldiers be selected at random and immediately shot as a cautionary example to their comrades. As one might expect, this exacerbated the Italian army’s morale problems rather than fixed them.

“It never seemed to occur to Cadorna,” one historian notes, “that such executions had a profoundly demoralizing effect on the junior officers and men ordered to arrange and perform them, and that the apparent absence of justice or reason in such affairs shook men’s faith in their superiors.”

This state of affairs continued to bedevil the Italians until Cadorna was finally relieved of command in late 1917 and belated reforms finally overhauled that army’s attitudes toward military discipline. By then, hundreds of men had been shot in Cadorna’s unremitting campaign of draconian injustice.

The French also resorted to decimation on rare occasions in that war, most notably in an incident involving colonial troops from North Africa. When the German offensive drove the Allied armies back at the beginning of the war, 10e Compagnie of 8 Battalion, a battered unit of French-African soldiers from Algeria, disobeyed an order to counterattack the Germans in their sector of the lines. In punishment, one man in ten was selected at random and executed by firing squad on Dec. 15, 1914.

Differences In Legal Codes

Except for the instances noted above, and those that followed the widespread mutinies of French units in 1917, the application of military justice in the armies of France, Germany, and the United States was usually not as severe as those of Russia, Austria-Hungary, Italy, and Great Britain.

Of all nations in that conflict, the Germans attempted perhaps the most deliberate form of wartime courts-martial. In 1918, barely 17% of German military tribunals—363 trials out of a total of 2,138—actually completed their proceedings and returned a verdict. By comparison British tribunals advanced at a much quicker pace, averaging two to three weeks between conviction and execution in those cases when the death sentence was approved by the commander-in-chief, a role held first by Field Marshal Sir John French until he was replaced by Field Marshal Sir Douglas Haig at the end of 1915.

But military justice was never more precipitous and hurried than it was in the Austro-Hungarian army. Austrian military regulations required their drumhead courts-martial to return a verdict within seventy-two hours, and the only choices allowed were a complete acquittal or the death sentence. If an Austrian soldier was sentenced to death, the execution was to be carried out within two hours. There was no possibility of appeal.

Differences between the legal codes also played a part in how each army prosecuted and punished soldiers accused of desertion. In the German army, the death penalty was limited to repeat offenders, and German military law required proof of a soldier’s actual intent to desert. Italian prosecutors, in contrast, only had to prove that a soldier was absent from his regiment to convict him of desertion. The French distinguished between desertion to the enemy and desertion to the interior of their own lines in their determination of whether or not the death penalty was applicable.

Why Did This Happen?

Every examination of historical events should pause long enough to ask the question: “Why was this so?” In the matter of soldiers shot for desertion in the First World War, the answer to that question is simple enough, if ultimately unsatisfactory.

Military doctrine in most armies of that era insisted that capital punishment was an effective deterrent to the problems of desertion and poor discipline. Taking that view, senior commanders of the British, French, Italian, and Austro-Hungarian armies were among the most ardent believers in the use of the death penalty as an indispensable element of military justice. Approximately two-thirds of death sentences handed down by British tribunals were for the charge of desertion, and most of the men shot by British firing squads were condemned for that offense.

It was no coincidence that the British carried out more executions on the eve of major offensives, in an apparent effort to shore up the resolve of other troops about to climb out of their trenches into the fire of German machineguns. As one historian describes it, this almost amounted to a “bureaucratic decimation,” and that “the execution of one in ten was regarded as a ‘safe’ level politically speaking, satisfying both military and judicial concerns.”

Other armies were much more reluctant to execute men who failed in the clinch, particularly when those men were volunteers and not reluctant conscripts. No Australian troops of that war were executed for desertion or cowardice, because even though 129 Australian soldiers were sentenced to death (all but 10 of them for desertion) the Australian government refused to countenance the British Army’s use of firing squads on its personnel. As the official historian of Australian forces noted, “there was an abhorrence to the seeming injustice of shooting a man who had volunteered to fight in a distant land in a quarrel not particularly Australian.”

American courts-martial in the First World War sentenced 24 U.S. Army soldiers to death for desertion, but none of those men were actually executed. The only American soldiers put to death in France were convicted of other capital crimes such as simple murder. The Germans, who would execute at least 10,000 men for desertion during the Second World War, shot no more than 18 soldiers for that crime during the First World War, even though nearly 150,000 German soldiers deserted their units between 1914 and 1918.

Combat Stress and Demoralization

The human toll of military insensitivity to combat stress of that war impacted more than just the men who faced firing squads at dawn. The men ordered to form those firing squads carried the trauma of those moments for the rest of their lives, as is clear in the recollections of men such as Victor Silvester, a British soldier who recounted his experience when he was ordered to serve on a firing squad to execute a fellow soldier condemned for desertion:

“The victim was brought out from a shed and led struggling to a chair to which he was then bound and a white handkerchief placed over his heart as our target area,” Silvester remembered. “He was said to have fled in the face of the enemy. Mortified by the sight of the poor wretch tugging at his bonds, twelve of us, on the order raised our rifles unsteadily. Some of the men, unable to face the ordeal, had got themselves drunk overnight. They could not have aimed straight if they tried, and, contrary to popular belief, all twelve rifles were loaded. The condemned man had also been plied with whisky during the night, but I remained sober through fear.” Silvester carried the weight of that moment to his death in 1978.

The passage of time has permitted a reconsideration of these cases, and most of the nations that executed men during that war have since taken a more informed view of their cases. In 2000 the New Zealand government issued a pardon for its five soldiers executed during the war, and in 2001 the Canadian government offered an “expression of regret” for its soldiers who were shot for desertion. In August 2006 the British government issued a conditional pardon to all British soldiers shot for desertion in the First World War.

Drowned in a storm: Capt. Arthur Hood (1755–1775) 

Three Hood brothers (Arthur, Alexander, and Samuel) all served in the Royal Navy in the latter half of the 18th century. They were the second generation of the Hood family to go to sea; two of them did not survive to retire from the service. Arthur Hood served aboard the 18 gun sloop of war HMS Pomona  in the West Indies.

When the Pomona was caught in a hurricane in the West Indies, Hood drowned in the storm. He was the first of the Hood family to die at sea.

Killed at the Last Minute: Capt. Alexander Hood (1758–1798) 

Alexander Hood was the younger brother of Capt. Arthur Hood. On April 21, 1798, Hood was captain of HMS Mars, a 74-gun third class ship of the line, when he engaged the French ship Hercule off the Brittany coast. Despite the two ships being nearly evenly matched in firepower, mounting 74 guns each, the French got the worst of the fight, losing more than 300 men to British losses of 31 men killed and 60 wounded.

Capt. Hood did not live to savor his victory—he was mortally wounded in the final moments of the battle and died as he was being presented with the French captain’s surrendered sword.  

Family ravaged by yellow fever: Lt.-Gen. John Bell Hood (1831–1879) 

John B. Hood served as a Confederate general officer during the American Civil War. He was a bold fighter and excelled as a combat leader at the brigade and division levels, but in more senior positions of command his boldness verged on aggressive foolhardiness. His appointment to the command of the Army of Tennessee in the last year of the war was a poor choice by the Confederate government, because in a matter of weeks his repeated assaults on much stronger Union forces all but destroyed the ranks of the army that his predecessor, Gen. Joseph E. Johnston, had managed to keep intact in the face of overwhelming odds. The poet Stephen Vincent Benet was not far off the mark when he described Hood as “all lion, none of the fox.”

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Hood was twice severely wounded: his left arm was crippled by shrapnel at the July 1863 Battle of Gettysburg, and he lost his right leg at Chickamauga two months later. After the war ended he took up work as a cotton trader and insurance broker in New Orleans, but in 1878 his business was ruined during an outbreak of yellow fever.

Within a single week, Hood, his wife, and his eldest child all died of the disease. His other 10 children were left orphaned. 

Lost At Sea: Rear Adm. Sir Horace Lambert Alexander Hood (1870–1916) 

Another scion of the British Hood family of Royal Navy fame, Horace Hood began his naval career in 1882 at the age of twelve. As a commander of riverine gunboats on the Nile he served in the Mahdist War in 1898, and in 1903 he was awarded the Distinguished Service Order for action against the Dervishes in Somaliland. By 1908 he was commanding the battleship HMS Commonwealth, and as a flag officer in 1916 he took command of the 3rd Battlecruiser Squadron with the rank of rear admiral.

On May 31 of that year, aboard his flagship HMS Invincible, Hood led his squadron into action against the German fleet at the Battle of Jutland. In the first exchange of fire Invincible succeeded in fatally damaging the German cruiser SMS Wiesbaden, before she herself was targeted by the combined gunnery of battlecruisers SMS Lützow and SMS Derfflinger. A shell from one of Derfflinger’s 12-inch guns penetrated Invincible’s starboard “Q” turret and denotated its store of cordite propellant, causing a massive explosion that literally cut the ship in half.

Invincible went down in minutes. Rear Admiral Hood perished with his ship and all but six of his 1,021 men.

Catastrophic explosion: HMS Hood (named for Adm. Samuel Hood) 

HMS Hood was an Admiral class battlecruiser of the Royal Navy, laid down in September 1916 at the height of the First World War. Originally planned as a class of four ships, Hood was the only ship of the four to actually be constructed. By the outbreak of the Second World War, Hood was overdue for modernization; advances in gunnery and range finding made her particularly vulnerable to plunging fire from heavy guns on account of her thinner deck armor, and problems with her steam condensers meant that she was unable to attain full speed when maneuvering.

In 1941 Hood was dispatched as the flagship of the battle group sent to intercept the German battleship Bismarck. On May 24, the British brought Bismarck and her escort, the heavy cruiser Prinz Eugen, to bay in the Denmark Strait. The two German ships concentrated their combined fire on Hood. Hood sustained repeated hits, and then just before 6:00a.m. she was struck by a salvo that blew up her aft magazine in a catastrophic explosion.

Hood went vertical in the water, going down by the stern, and she sank in less than three minutes with a loss of 1,415 men. Only three members of her crew survived.

More than 40% Casualties: Hood Battalion, Royal Naval Division (1914–1919) 

The Royal Naval Division (RND), one of the most unique combat units ever fielded by the British military, was an idea conceived by Winston Churchill during his tenure as First Lord of the Admiralty (1911–1915). Initially comprised of sailors from the Royal Naval Reserve and Royal Marines, each of the RND’s battalions were named after famous British admirals such as Hawke, Drake, Nelson, Howe, and of course, Hood. The Hood Battalion fought with the RND in some of the most important battles of the First World War including Gallipoli, the Somme, Gavrelle, and Passchendaele.

Twice, the Hood Battalion nearly fought itself out of existence as a combat effective unit, sustaining casualty rates of almost 50 percent until its ranks could be replenished.

Even though the RND represented only 5% of the Royal Navy’s total strength during the First World War, the division’s combat losses accounted for more than 40% of the naval service’s total casualties, and those losses occurred on land, not at sea. When the RND was formally disbanded in June 1919, the Hood Battalion was one of only four of the original eight battalions remaining in the division.

A troubled History: Fort Hood, Texas

A US Army installation named for Confederate Lt.-Gen. John Bell Hood, Fort Hood is located outside Killeen, Texas. Covering an area of 214,000 acres, it is one of the largest military installations in the world. Founded in 1942, the post has long been a training center for armor warfare and since 1971 it has been home to the famous 1st Cavalry Division.

Fort Hood was the scene of social activism and soldier protests during both the Vietnam War and more recently the War on Terror. It also has a troubled history of incidents of scandal and criminal violence, one of the worst occurring on November 5, 2009. A self-described jihadist named Nidal Hasan, who was then a US Army medical corps major, carried out a shooting attack in the post Soldier Readiness Center, killing 13 people and wounding 32. Hasan was sentenced to death by court martial in 2013 and is currently on the military death row at the Fort Leavenworth prison.

In recent years Fort Hood has gained a grim notoriety for sexual assault and sexual harassment problems, so egregious that in 2020 the Secretary of the Army relieved 14 senior leaders on the installation for “leadership failures.” In May 2022 the Army announced that as part of the decision to redesignate any post bearing the name of former Confederate soldiers, Fort Hood will be renamed Fort Cavazos in honor of General Richard E. Cavazos, the first Hispanic soldier to ever hold four star rank.

In international conflict, most belligerents have long recognized the tangible benefit that exists in mutually recognizing and adhering to the idea that certain persons should be immune from attack or molestation, even when those people are official representatives of the enemies. This is the concept embodied in the idea of diplomatic immunity, a modern phrase which has actually existed in different constructs for thousands of years.

The international law of diplomatic immunity in its current form was created in 1961 by the adoption of the Vienna Convention on Diplomatic Relations. The ideas formally codified at Vienna ensured the safe conduct of diplomats to facilitate communication between governments, “particularly during times of disagreement or armed conflict.”

That language would have been instantly recognizable to statesmen and jurists in both the ancient and medieval eras because their understanding of the concept was much the same, especially as it applied to three distinct categories of protected persons: heralds; envoys; and the embassies of official ambassadors.

This Is Sparta?

In the ancient world, prior to any formal codification of law pertaining to diplomatic immunity, religious practices provided the foundations of the protections afforded to designated people. Priests or other persons of religious affiliation often served as official envoys between states, and their status as clerics was the first basis of immunity. To attack or harm an emissary, even one from a hostile nation, was to risk offending the gods upon whose favor might turn the fortunes of war.

So, while the Spartans really did throw a Persian emissary into a well in 491 BCE after he demanded of them “earth and water” as tokens of their submission to the emperor Darius, they quickly repented of the act after deciding they had insulted the gods by doing it.

The Spartans sent their own emissaries to Darius with the offer that he could execute them to remit the offense, but the Persians were by then irrevocably committed to war. Athens had dealt with Persian envoys in nearly the same way, but the Athenians were apparently less troubled by the idea of divine retribution for the killing of official emissaries.

With the ascendance of the Roman Empire, the widely recognized tenets of guaranteeing the safety of diplomatic missions were increasingly codified into law. Drawing on the idea of ius gentium, or “the law of nations,” the Roman jurist Gaius wrote that “the law that natural reason establishes among all mankind is followed by all peoples alike, and is called the law of nations as being the law observed by all mankind.”

Immunity—At Least In Theory

It was an idea that should govern all human conduct, because all humanity recognized its importance, regardless of their societal or political differences. A later Roman jurist, Hermogenianus, developed this concept further by specifying that ius gentium applied in matters of “war, national interests, kingship and sovereignty,” as well as other areas that would today be classified as commercial law. A particularly important detail in the Roman view on the question, one which was to shape nearly every aspect of later medieval thought, was in the idea of the bellum iustum, or “just war.” Roman commentators went to extraordinary lengths to explain why their numerous wars, large and small, were all justified, and one of the essential elements of a just war was that it must be preceded by a formal declaration of war by duly appointed officials. Once those conventions were observed, a war was justified and could be prosecuted to the fullest, and most savage, extent necessary, but the persons who brought that declaration of hostility were to be immune from retaliation.

It was considered an egregious offense in both legal and religious terms to harm a diplomatic envoy, even after a state of war existed, but beyond the religious views that dictated proper treatment of envoys, another more pragmatic motivation was always in play—reciprocity. 

Even the most belligerent of ancient rulers seemed to hesitate to mistreat his enemy’s ambassadors for the simple reason that he wanted his own ambassadors to be able to carry out their diplomatic missions unmolested.

The familiar image of ancient despots ordering the execution of their messengers who were unlucky enough to bring bad tidings was actually more of a domestic issue when it occurred, rather than an international one.

Most rulers were careful to safeguard the immunity of foreign emissaries as a practical means of ensuring the safety of their own envoys who represented their interests in foreign courts.

The Need for Parlay

In the early medieval period, European jurists built upon the Roman concepts of ius gentium and further formalized it under canon law. As the early scholar Isidore of Seville wrote, ius gentium was understood to pertain to nearly all practices of war including occupying enemy territory, fortification of strongholds, the taking of captives in war, the negotiations of treaties, and, most important to this discussion, “the inviolability of ambassadors.” That this was an almost universal truth, he declared, was obvious “because nearly every nation uses it.”

This was not to say that all noncombatants enjoyed the same level of protections from harm. “The laws of war in the Age of Chivalry knew something about the immunity of noncombatants,” as one historian has observed, “though what they knew they usually ignored.” This was true of civilians and sometimes even clergymen who were unlucky enough to cross an invading army’s path, but it was not usually true of heralds, envoys, or ambassadors.

Even in this stage of diplomatic practice reciprocity continued to play its part, especially in the observance of formal truces between combatants. Since one party to a truce was considered released from restraint if the other party broke the agreement first, self-interest continued to be the best check on aggressive impulses. 

Roman concepts continued to exert strong influences over medieval European ideas of the proper ways to engage in warfare, and the notion of just war remained central to most of the formal wars that pitted one realm against another throughout the Middle Ages.

Carrying White Wands

A Christian king could not claim God’s blessing on his wars against his neighbors unless he first declared his belligerent intentions by means of a formal declaration of war, which in that era took the form of the diffidatio, or formal “defiance,” delivered in person by an officially designated and recognized representative. This was most often the function of the herald.

Heralds served several roles in the medieval world, both in times of war and peace, but they were frequently tasked with carrying messages of defiance between warring kings, or between kings who were about to go to war with each other. In an era when dress and insignia carried great significance and were increasingly regulated, heralds carried white wands or batons as a visible sign of the immunity inferred upon them by their positions and diplomatic missions. Henry V’s 1415 campaign into France, which famously culminated in the Battle of Agincourt, offers an excellent example of how scrupulously the protections of heraldic immunity were usually observed during medieval warfare.

After completing his siege of Harfleur, Henry marched his army through the French countryside enroute to his embarkation port at Calais in a symbolic declaration of his right to the territory he claimed. In response, the French sent three heralds to tell him that they would bring him to battle and destroy him before he reached safety. One of those heralds was a man named Jacques de Heilly, who had been captured by the English in an earlier battle (in which he was not serving as an officially appointed herald) and who had managed to escape and return to France.

Carrying the white wand and wearing a herald’s surcoat, de Heilly clearly did not have any hesitation about walking into the midst of the English army, even though he was recognized and under any other circumstances would have been subject to recapture. If he had broken his parole in order to affect his escape, he would even have faced the possibility of execution if he fell back into English hands. As an official herald, however, he could pass in and out of Henry’s forces without fear of molestation, and did so. 

De Heilly’s case provides another truth about how heraldic immunity functioned in practice. He was killed a few weeks later in the chaos of the fighting at Agincourt, even though he was then marked as a herald. Whether he was deliberately targeted or struck down by chance in the maelstrom of battle is uncertain. 

Just as they were essential to the formal declaration of war, heralds were also integral to the aftermath of battle, whether they were on the winning side or the losing side. After Henry V won the day at Agincourt, he summoned both English and French heralds to determine what the location of the battle was, to set the name by which it would be recorded in both his exchequer records and in the histories.

The French heralds declared that the battle was indeed an English victory, thereby formalizing the outcome. The heralds on that field were also responsible for making the tally of the fallen, taking a record of all men of chivalric rank killed in the fighting. The common rank-and-file soldiers of both armies were less important, other than to ensure that the paymasters could strike their names from the muster rolls.

Legalized Spies?

While heralds held the status of protected messengers, they were not diplomatic negotiators, and their role in that sphere was usually just to secure guarantees of safe conduct for the official embassies that might be sent after them.

“Heralds lacked the status and were not expected to have the expertise to qualify them to act as ambassadors,” as one scholar notes. To put it another way, heralds provoked the fight; ambassadors negotiated the peace treaties and armistices that followed the fight. For that critically important role, noblemen and senior clerics were called upon since they were far better versed in matters of law and statecraft, and their rank was a mark of the respect paid to the courts that received them.

In the rough and tumble world of medieval conflict, ambassadors from a hostile nation were often regarded as “legalized spies,” but their immunity was usually considered inviolable, even if grudgingly so. A full century before Agincourt, Honore de Bouvet, consellier to the French king Charles VI, wrote, “according to written law, ambassadors and legates pass in security through a country, and while they are going to the king outside the realm, no man may hinder, disturb, or injure them.”

Their protected status was considered unbreakable even in times of extreme provocation, such as when one party to a peace treaty violated its terms. The aggrieved party in such a betrayal “could offer no violence to the enemy’s envoys, they being protected by the Law of Nations and declared inviolable and sacred apart from any agreement or a truce and even in the heat of war,” the Spanish chronicler Ayala declared, and concluded, “it is immaterial that the enemy have already broken a truce and done violence to envoys sent from the other side to them.”

This understanding of diplomatic immunity continued into the Renaissance, as demonstrated by the fact that the Spanish ambassador to the court of Elizabeth I continued to have regular access to the English seat of government even though he represented England’s greatest and most dangerous enemy.

These millennia of thought and practice formed the basis for modern concepts of diplomatic immunity formalized in the 1961 Vienna Convention.

The British Army of the early 19th century had a well-earned reputation for deplorable conditions of service and excessively harsh discipline; to a lesser degree, the same could also be said of the U.S. Army in the same period. Reforms in military law—and more importantly, changes in national attitudes toward matters of military discipline and punishment—occurred along similar lines on both sides of the Atlantic.

Describing the culture of military discipline that existed in the U.S. Army during the frontier era, historian Don Rickey has said, “Fear of punishment was the basis of discipline.” This was true of all armies throughout history, just as it has been a factor in human behavior in most civilian societies and cultures. Fear of the punitive and punishing hand of the law, after all, was supposed to hold the criminal element in check, particularly when that punishment was known to be swift, sure, and severe. How well this deterrent worked in practice was always debatable, but for centuries the prevailing belief in militaries the world over insisted that military discipline could only be maintained by the heavy-handed application of harsh punishments.

The British soldier at the beginning of this period was subject to a code of military law that was, in a word, brutal. In 1800, British Army regulations listed no fewer than 222 offenses that could draw the death penalty, and corporal punishment in the form of flogging was taken to such an extreme that sentences of as many as 500 lashes were regularly ordered. That number of lashes was enough to kill a man, a fact which led several contemporaneous observers to question the ultimate intent of such punishment. Even in an era when flogging was firmly established in military law, there were always critics who deplored it as barbaric.

How much the individual British soldier was at risk of a flogging depended to some degree on his own conduct, of course, but the infliction of this punishment could be incredibly capricious. Some British officers were benevolent disciplinarians who resorted to the lash only when the severity of the offense or the immutability of military law required them to do so, but others were infamous for their proclivity for flogging men on almost any pretext. Major General Robert “Black Bob” Craufurd, the tactically brilliant but notoriously mercurial commander of the British army’s Rifles Brigade in the early years of the Peninsular War, was a ferociously strict officer who threatened to flog any man in his brigade who stepped out of the line of march in order to avoid a mud puddle in the road. Coming from a man of Craufurd’s reputation, it was no idle threat. His nickname originated from his moodiness rather than his physical appearance, but it might just as accurately have been applied to his draconian views on military discipline.

The enlisted men in armies on both sides of the Atlantic endured decades of passive neglect and outright condemnation from their civil societies, and the same sort of negative stereotypes were applied to British and American soldiers alike. The Duke of Wellington’s frequently-quoted remark that the soldiers of his army were the “scum of the earth” might have been more a judgment on the shortcomings of the British recruiting system than on the individual qualities of the British soldier, but it has usually been interpreted as a comment on his solders’ predilection for drink and disorder.

The French army of the Napoleonic Wars, on the other hand, relied on nationwide conscription and so at least theoretically brought men of better character into the ranks since it drew men from all walks of life. That was a stereotype, and as such it was no more accurate than was the British opinion that only the most dissolute and desperate men in their society would ever accept the King’s shilling and enlist voluntarily.

The British public celebrated their soldiers when they won victories on the battlefield but reviled them as reprobates and criminals the rest of the time. This attitude persisted for decades, and Wellington himself expressed it on occasion. In 1829 he wrote, “The man who enlists into the British army is, in general, the most drunken and probably the worst man… of the village or town in which he lives… they can be brought to be fit for what is to be called the first class only by discipline.” This belief that most soldiers were utterly deficient in moral character was accompanied by the view that the only way to keep them in check was by harsh discipline enforced by savage forms of corporal punishment. 

British commanders down to the company level had authority to sentence soldiers to brutal punishments for the most trivial of offenses. The returns of one regiment in 1811 were not at all unique in the penalties its officers imposed for minor transgressions. The trivial infractions soldiers committed, and the punishments imposed, included: “Deficient of frill, part of his regimental necessaries.”—100 lashes; Deficient of a razor, part of his regimental necessaries.—200 lashes; for making an improper use of the barrack bedding.—400 lashes.”

In the U.S. Army flogging was also a standard punishment at the outset of the 1800s, for a wide range of offenses. When the United States encoded its first version of the Articles of War in 1806, flogging was applied to no less than 30 offenses. The British applied the lash with even greater frequency to many more violations of military regulation, and the rigidly conservative senior ranks of both armies regarded the lash as indispensable to maintaining good order and discipline. As one historian notes, “Traditionalists tended to look on private soldiers as incorrigible reprobates who required stiff doses of punishment to keep their animal instincts in check.”

Reform came slowly in both nations, and changes in military justice reflected changes occurring at the same time in civilian law and societal attitudes toward crime and punishment. The growing civilian repugnance for the spectacle of soldiers tied to the halberds for floggings in view of their assembled regiment arguably had more to do with progressive attitudes about the inhumanity of the punishment itself than with any real concern for the rights of the soldiers themselves, at least at first. The activists who protested against the savagery of military punishments did not express nearly as much indignation about the wretched conditions of soldiers’ lives, even though the two issues were inextricably linked. By 1850, public pressure in the United States had forced a drastic reduction in the number of military offenses for which the lash could be imposed, but the army managed to avoid an outright abolition of flogging by keeping it as an optional punishment under intentionally vague and ambiguously worded regulations.

For British soldiers, the wide degree of interpretation applied to charges such as “insubordination” meant that they were always at risk of severe punishment for minor offenses—almost any action or behavior could be interpreted as insubordination if their officers chose to interpret it as such. In 1849, one soldier was punished on a charge of insubordination for “wearing new trousers outside the barrack gates while drunk.” The charge of “disgraceful conduct” was even more ambiguous, so much so that in that same year the government felt it necessary to warn the army that “the indiscriminate use of the term tends to weaken its moral effect.” Even so, the overuse of the lash as punishment for violating hopelessly vague and ambiguous rules continued. The problem was not as severe in the U.S. army at that time, but American court-martial records from the period show that soldiers were flogged for offenses such as “making a disrespectful gesture to the adjutant,” and “loss of a bridle.”

In both Britain and the United States, the incremental shift away from military flogging happened at nearly the same time—during the Napoleonic Wars in Britain, and after the War of 1812 in America. Humanitarian concerns were only part of the objections raised. Most critics focused on the fact that flogging simply did not seem an effective deterrent to misbehavior. “I have closely watched the career of many of the recipients of this degrading punishment,” one former British soldier wrote, “and I can safely say that I never knew not even one that it made any improvement in, either his moral character or as a soldier.” Over a career of 21 years in the ranks, this soldier estimated that he had witnessed at least 100 floggings, so he held a very well-informed opinion.

The U.S. Army from its creation in 1775 used flogging as a punishment, though with less frequency and certainly for fewer offenses that did other armies of the same era. The lash remained an option of military justice in the American army up until the Civil War, when it was finally stricken from army regulations in 1861. Until then, the offense for which it was most commonly applied was the crime of desertion, and it was usually applied as one of a series of punishments that often included branding with the letter “D.” Branding remained a legal punishment in the U.S. Army until it was replaced by the practice of “indelible marking” or tattooing of the shameful letter, and was finally abolished completely in 1870.

In time, the shift in civilian and military attitudes toward corporal punishment was reflected in increasingly creative alternatives to the old standby of flogging. By the time of the American Civil War, soldiers in the U.S. Army incurred such punishments as being made to stand on a barrel in the middle of camp, carrying a heavy log under guard, or riding a wooden sawhorse while holding an enormous wooden sabre, all of which relied more on discomfiture and public humiliation than physical abuse. A British soldier of that era might be made to wear his uniform inside out, stand at the position of attention with his face to a wall while wearing full marching kit, or report in different uniform configurations for inspection every hour throughout the duty day. That last punishment continues to be used by noncommissioned officers in both armies to this day. One Victorian-era British officer was noted for
his inventive punishment for drunkenness. Rather than making a formal entry on a soldier’s charge sheet and consigning the miscreant to the guardhouse for regimental correction, he ordered him confined to the post hospital on a course of emetics, a purgative that induced uncontrollable vomiting, then docked his pay for the costs of the medicine and the laundering of the bed sheets. 

This sort of creative innovation on the part of the commanding officer allowed more lenient, progressive-minded officers to exercise their individual discretion. At the same time, however, it also allowed excessive punishment to take root outside the scope of military regulations. One Scottish soldier who was serving in his regiment’s officers mess was sentenced to 48 hours of solitary confinement, to have his hair shaved, five days of marching drill,
14 days of confinement to his barracks, and forfeiture of two days’ pay. His offense was that he had been slow to provide the senior officer of the mess with a bottle of soda water when it was demanded. 

Even as the harshest forms of discipline slowly gave way to progressive reforms, however, the inconsistent application of military punishments was recognized as an enduring problem. “I think,” one senior British officer wrote in the midst of the debate over proposed changes to military justice, “a greater discretionary power would only produce petty tyrants, who will torment the soldiers into desertion and drinking… he is merely a zealous fool, hot after unimportant minutiae.” Policymakers in the American military expressed the same concern, and that issue continues to the present day. Commanders’ personalities and their views about how discipline should be enforced are constant variables that have made soldiers’ lives difficult in all armies throughout history and probably always will, despite reams of military regulations that try to eliminate those factors from the process of maintaining good order and discipline in the ranks.

John A. Haymond is the author of Soldiers: A Global History of the Fighting Man, 1800–1945 (Stackpole Books, 2018) and The Infamous Dakota War Trials of 1862: Revenge, Military Law, and the Judgment of History (McFarland, 2016).

this article first appeared in military history quarterly

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The Dutch jurist Hugo Grotius is most often cited for his contributions to the development of international laws of war. Before he published his magnum opus, On the Law of War and Peace, in 1625, however, he wrote a smaller work titled Mare Liberum (The Free Sea). It was not much more than a chapter excerpted from his study of the 17th-­century practice of prize taking in naval conflict, but the influence of Grotius’s short essay was to survive far beyond his lifetime. It was, as the U.S. Naval War College describes it, nothing less than “the first formal statement of freedom of the seas as a general principle of international law.” 

It was a simple enough proposition for the world’s seagoing nations to agree, at least in theory, that unimpeded navigation of the high seas was to the benefit of all concerned. In practice, however, the question of where a nation’s territorial waters and maritime sovereignty end and the high seas begin was a contentious point that remains hotly disputed today.

An early attempt at resolving the question was advanced by another Dutch jurist, Cornelius van Bynkers-hoek, who postulated that “the dominion of land ends where the power of arms ends,” which was understood to mean “so far as cannon balls are projected.” That, of course, was imprecise, so in 1782 an Italian scholar pinned the distance at one sea league. Since Thomas Jefferson, as U.S. secretary of state, had determined that one sea league was indeed the maximum range of cannon shot, the United States accepted one sea league, or three miles, as the reach of its territorial waters. The British government concurred, but its insistence on being allowed to engage in “hovering acts,” by which ships of the Royal Navy were empowered to overhaul and board vessels outside Britain’s territorial waters on suspicion of criminal activity, contradicted that limitation until it discontinued the practice in the late 1800s.

The theory of a nation’s right to defend its territorial waters was problematic when long-established sea lanes fell within the lines of new territorial claims on maritime charts. Certain narrow passages between mainland and islands such as the Vilkitsky Straits in the Arctic Circle or the Corfu Channel off the Albania coast or constricted waters like the Gulf of Aqaba east of the Sinai Peninsula have been scenes of international dispute and outright conflict when one nation contests the passage of another nation’s ships through what it regards as its territorial waters. In a series of conferences in the 20th century, as more and more nations declared a 12-mile reach into open seas, participants fiercely debated the limit of national sovereignty in coastal waters.

The 1958 Geneva Convention on the Law of the Sea established limits for territorial waters but also recognized that national sovereignty was far from absolute in those seas. Rather, it held, territorial waters “are subject to limitations imposed by the community of nations by means of international law.” One of those limitations is the doctrine of innocent passage.

The concept of innocent passage holds that ships of all nations are free to sail through seas claimed as territorial waters by any other nation so long as the vessels meet certain conditions. It is not a reciprocal policy because international law and custom insist that ships of unfriendly nations are just as free to transit those lanes as are ships of allied or friendly states. Two types of vessels, however, continue to generate argument and conflict: fishing boats, because of their economic importance, and naval warships, for reasons of national security. 

The Geneva Convention defined “passage” as “navigation through the territorial sea for the purpose either of traversing that sea without entering internal waters, or of proceeding to internal waters, or of making for the high seas from internal waters.” It is an important distinction, because before then it was widely held that a ship in passage, just like a ship in port, was under the coastal nation’s authority. Passage was thereafter determined to be “innocent” as long as a ship’s transit was “not prejudicial to the peace, good order or security of the coastal State,” as the 1982 United Nations Convention on the Law of the Sea termed it.

The United States interpreted this language as pertaining only to military security, but India and other nations insisted that it encompassed far more. Britain, voicing the most widely held view, maintained that the manner in which the passage was conducted, rather than the transit itself, should determine whether a ship’s passage was innocent. Did the vessel have its guns raised, for example, or fail to respond to signals and communications from the coastal nation? Language discussing the unique capabilities of submarines was also included in the Convention’s final draft, which required them “to navigate on the surface and to show their flag,” thereby announcing their peaceful intentions.

An incident in the North Corfu Channel in 1946 was one of the first tests of this doctrine after World War II. The British destroyers Saumarez and Volage, sailing through the channel, struck mines in an uncharted minefield moored in Albanian waters. The Royal Navy, without seeking a diplomatic resolution, proceeded to clear the waters of mines. Albania disavowed any knowledge of the minefield and insisted in the International Court of Justice that Britain had violated its sovereignty by sending warships through waters that were a secondary passage and not an essential shipping lane between high seas. 

The court, holding that the strait connected two portions of the high seas that had been established as an area of international maritime navigation, rejected the Albanian argument that a body of water must be a “necessary route” to qualify for innocent passage. “The North Corfu Channel,” it ruled, “should be considered as falling under the category of international maritime thoroughfares, through which passage cannot be prohibited in time of peace by a coastal state.” In fact, Britain’s decision to send the Saumarez and Volage through the strait was a strategic one, intended to test Albania after an incident earlier that year in which Albanian coastal batteries had fired on British vessels in the channel. In the court’s view, the fact that the British ships sailed with their guns in stowage positions, not trained on the Albanian shore, was enough to indicate that their passage was innocent. What the court decided was not so innocent, however, was Britain’s decision to clear the minefield without first obtaining Albania’s permission—a violation of Albanian sovereignty. Nonetheless, the court did not hold the British government liable for any damages, ruling that Albania had failed to warn ships of other nations of the navigational hazard in its waters.

The ability of warships to claim innocent passage continued to bedevil international jurists after the Corfu Channel incident, and the matter took on greater urgency as the Cold War heightened tension between the nations of the Warsaw Pact and NATO, and repeated Middle Eastern conflicts threatened international shipping in the waters between Africa and Arabia. The Geneva Convention attempted to clarify matters by adopting language requiring warships “to comply with the regulations of the coastal state.” In other words, if a naval vessel violated the coastal state’s demand for compliance, the ship could be ordered to depart the territorial waters immediately. The thorny question, of course, was how one nation could force another nation’s ships to leave its waters, should they refuse to comply, without the situation deteriorating to an exchange of gunfire?

This issue was further complicated when the waters in dispute could be classified as a “closed sea,” or internal water, which was exactly what Egypt claimed when in 1967 it closed the Gulf of Aqaba to all ships “carrying strategic cargo”—and specifically all Israeli-flagged vessels. Britain and the United States, the world’s foremost maritime nations, immediately protested this action in the Security Council of the United Nations. Israel claimed the right of innocent passage on account of its possession of Elath, an ancient settlement at the northern tip of the gulf. The United Arab Republic argued that this was not a legitimate territorial claim since the town had come into Israel’s possession only after the 1949 Egypt-Israel Armistice, and it insisted that territory acquired in war could only be converted to sovereignty if a state of war was resolved by a peace treaty, which was notably lacking in the Arab-Israeli conflict. The dispute ended without any real resolution when both Egypt and Saudi Arabia extended their claimed territorial waters to 12 miles, effectively

eliminating any free water in the gulf, but at the same time pledged to allow “free and innocent passage according to international law.”

In 1988 a dispute over U.S. claims to innocent passage in the Black Sea resulted in an incident between American ships and Soviet naval frigates. The U.S. government insisted that innocent passage was not limited to designated sea lanes, in contradiction to the Soviet position, which held that warships were never entitled to innocent passage within its territorial waters. The dispute was so entrenched that the English and Russian-language versions of the U.N. Convention on the Law of the Sea, Article 22, Paragraph 1, interpreted the restrictions differently. The Soviet version allowed the coastal state to restrict innocent passage whenever the USSR decided that a need existed; the American version contained no such restrictions.

The issue between the two nations continued to mount after the United States declared in 1983 that it would uphold “the rights and freedoms of navigation and overflight guaranteed to all nations under international law.” As a result, for several years American naval vessels regularly transited the straits between the Black Sea and the Mediterranean to enforce the U.S. interpretation of innocent passage for warships, particularly in “contested waters such as the Bosporus and Dardanelles.” The USSR recognized no right of innocent passage anywhere in the Black Sea and regarded the U.S. naval activity in its “closed sea” as military provocation. The Soviet Union was not about to start a shooting war over these incursions, but in 1986 it decided to try other means of driving American ships out of its territorial waters.

On February 12, 1988, the cruiser USS Yorktown, accompanied by the destroyer USS Caron, sailed within 10 miles of the Soviet coastline. The Soviet frigates Bezzavetny and SKR-6 sortied to contest the intrusion. As the American vessels passed through Soviet waters, the Caron received a radio message declaring that “Soviet ships have orders to prevent violation of territorial waters, extreme measure is to strike your ship with one of ours.” Caron replied: “I am engaged in innocent passage consistent with international law.” Moments later, SKR-6 turned into Caron’s path and collided with its port side. Yorktown reported receiving a similar warning before Bezzavetny bumped it. Being larger and of greater displacement than the Soviet vessels, the U.S. ships were able to maintain their intended course and two hours later sailed out of the USSR’s territorial waters, shadowed by their slightly damaged Soviet counterparts.

The incident was in keeping with the U.S. interpretation of international laws on innocent passage, with one notable exception. When Caron passed into Soviet territorial waters, its main armament was oriented toward the Soviet coastline, a detail that could be understood as contrary to acceptable conduct while navigating an innocent passage. Both governments subsequently issued diplomatic protests over the other side’s actions in the confrontation, and both remained committed to their respective interpretations of the law.

More recently, China’s large-scale reclamation projects in the South China Sea, which have converted submerged reefs into completely new land features, have renewed international and military disputes over the rights and limitations of innocent passage. The Third U.N. Conference on the Law of the Sea, which came into force in 1994, classified such constructions as being on the “sea bed” and thus in international waters regardless of who built them. Under international law, artificial features cannot extend territorial waters. Nonetheless, China continues to insist that it has “the right to engage in monitoring in the relevant air space and waters to protect the country’s sovereignty.”

This was precisely the problem recognized by a U.S. Naval War College study in 1980, which warned that “the community of nations will be subject to the arbitrary denial of passage by states which consider, subjectively, only their own parochial interests.” It was a prescient prediction, because the doctrine of innocent passage continues to be tested throughout the world’s seas. MHQ

John A. Haymond is the author of Soldiers: A Global History of the Fighting Man, 1800–1945 (Stackpole Books, 2018) and The Infamous Dakota War Trials of 1862: Revenge, Military Law, and the Judgment of History (McFarland, 2016).

On the morning of December 26, 1862, 38 men were hanged on a single gallows in Mankato, Minnesota. It was the largest simultaneous execution in American history. The execution of these men, all Dakota Indians, closed the first chapter of the most violent American Indian war of the 19th century. It was a short war, with actual fighting lasting only six weeks, but more lives were lost in this conflict than in any other war of the American frontier period. 

In the aftermath of the carnage, the officer in command of U.S. Army forces in the field, Colonel Henry Hastings Sibley, convened a military commission to try Dakotas accused of various atrocities. This hasty, field-expedient tribunal conducted 392 trials and sentenced 303 defendants to death, ultimately resulting in the 38 executions. 

Perhaps the worst miscarriage of justice, worse even than an innocent person being wrongly convicted of a crime, would be to convict someone of a crime that never occurred in the first place. Several lines of thought hold that this is precisely what happened to the Indians tried by Sibley’s highly controversial military commission. One contends that the violence that characterized the Dakota War of 1862 was completely legitimate for the simple reason that it was in accordance with the Dakota’s traditional, established practice of warfare. By this argument, even the deliberate, unrestricted killing of women and children was not a war crime and should not have been prosecuted under European-American codifications of lawful warfare.

The whole controversy over what constitutes a war crime, and whose concept of acceptable conduct in war is legally applicable, is complicated. The five officers who formed the court of the 1862 military commission trials (none of whom had any formal training in military law) believed that atrocities such as the killing of unarmed civilians were crimes warranting punishment. The question was whether the military commission was correct to apply European-American concepts of lawful warfare to what were long-established practices of warfare for the Dakota.

In 1758, a full century before the Dakota War, the Swiss jurist Emmerich de Vattel published The Law of Nations. Vattel’s treatise was a standard text for 19th-century American diplomats and soldiers, and his ideas had tremendous influence on the codification of the Articles of War the U.S. military used in the nation’s nascent years. 

In 1862 numerous American commentators believed that the Dakota were justified in going to war and that their long list of grievances against the U.S. government, which had finally driven them to war, were legitimate. But nearly all of them also insisted that the way in which the Dakota actually fought the war was not justified, not legitimate, and not acceptable. They condemned the Dakota for what they characterized as barbaric excesses of violence, and the indiscriminate killing of women and children was the primary reason why so many voices in Minnesota in 1862 called for vengeance against the Dakota, rather than justice.

Vattel had anticipated precisely this sort of visceral reaction to wartime atrocities. “If you once open a door for continual accusation of outrageous excess in hostilities,” he wrote, “you will only…influence the minds of the contending parties with increasing animosity: fresh injuries will be perpetually springing up; and the sword will never be sheathed till one of the parties be utterly destroyed.” So it was in the Dakota War. 

In discussions of American frontier history, one perspective argues that European-American observers are not qualified to criticize indigenous native cultures. Nothing in the traditional methods of warfare among the Dakota, this view would insist, can be described by so pejorative a word as “atrocity,” and European-American conceptions of proper warfare should not apply.

In many American Indian cultures, the practice of warfare made little or no distinction between men, women, and children or between the armed and the defenseless—almost anyone could be a legitimate target. “In intertribal wars,” notes Carol Chomsky, a professor at the University of Minnesota Law School, “almost all members of the enemy nation—including women and children—were legitimate targets of attack, and captives were rarely taken.” It was precisely this aspect of Indian warfare that had such an undeniable and negative influence on the military commission’s view of the defendants. 

“Women, children, feeble old men, and sick persons, come under the description of enemies; and we have certain rights over them, inasmuch as they belong to the nation with whom we are at war,” Vattel wrote. “But these are enemies who make no resistance; and consequently we have no right to maltreat their persons or use any violence against them, much less to take away their lives.” This was precisely how the members of Sibley’s military commission understood the matter when they sat in judgment.

Vattel, of course, had never seen a Dakota. He was born and reared in central Europe, where the horrific ravages of the Thirty Years War a century earlier had laid waste to entire regions and killed hundreds of thousands of women and children and the aged and infirm. These were precisely the types of people whom the Law of Nations was envisioned to protect.

In war, the victor makes the rules and writes the history, and the brutal reality of vae victis (woe to the vanquished) has applied to conflicts across the entire spectrum of human experience. But American concepts and definitions of lawful warfare are the only ones that bear on the Dakota War because all parties involved in the conflict—American soldiers, American civilians, and, most important, the Dakotas themselves—used those concepts and definitions to frame their views of the war at the point of its conclusion. The Dakotas adopted American ideas of lawful warfare when, in one extremely important instance, it seemed in their best interest to do so: at the point of their surrender to the U.S. Army, when they expected to be treated as prisoners of war. Consequently, they inadvertently accepted that American rules of war also applied to them.

At the same time, some commentators failed to acknowledge that European-American tacticians had long recognized preemptive strikes or surprise attacks—which the Dakotas certainly used in the first days of the war—as legitimate. They came with certain risks, however. “The opening of hostilities through a sudden raid,” the German tactician Herman Froetsch observed, “is politically a severe handicap which, while it may be lightly considered at the commencement of a war, is likely to have very unfortunate consequences should the war turn out badly.” What compounded the consequences for the Dakota was that they had made their surprise attacks not against purely military targets but rather against civilians, and in the eyes of many Americans, that utterly negated the legitimacy of such tactics.

In 1862 the argument over POW status for the defeated Dakota went back and forth as autumn gave way to winter. “We cannot hang men by the hundreds,” Episcopalian bishop Henry Whipple wrote to Senator Henry Rice. “Upon our own premises we have no right to do so. We claim that they are an independent nation & as such they are prisoners of war.” But Whipple was distinctly in the minority. “I think you are in error in saying they are prisoners of war,” Rice wrote in his reply to Whipple. “In my opinion they are murderers of the deepest dye. The laws of war cannot be so far distorted as to reach this case in any respect.”

One of the most complete accounts from the Dakota perspective comes from the narrative of Chief Big Eagle. He had not favored the idea of war against the Americans, but once the die was cast and war broke out, he was an active combatant. “I and others understood,” Big Eagle said, “that Sibley would treat with all of us who had only been soldiers and would surrender as prisoners of war, and that only those who had murdered people in cold blood, the settlers and others, would be punished in any way.” (In fact, Sibley initially felt that the Indians were not “entitled to be considered in the light of prisoners of war, but rather as outlaws and villains.”)

More than 30 years after the war, Big Eagle was still understandably bitter about being treated like a common criminal rather than a surrendered soldier from a sovereign nation waging a legitimate war. “If I had known that I would be sent to the penitentiary I would not have surrendered,” he said. “I surrendered in good faith, knowing that many of the whites were acquainted with me and that I had not been a murderer, or present when a murder had been committed, and if I had killed or wounded a man it had been in a fair fight, open fight.” 

So what was the applicable definition of legitimate warfare in 1862? As is true today, it was accepted that in open war between states, soldiers on each side were entitled to protection from the normal legal prohibitions against killing and destruction. This does not mean, however, that all acts of violence in the course of war are automatically condoned. Vattel addressed exactly this question in The Law of Nations: “Even he who had justice on his side may have transgressed the bounds of justifiable self-defence, and been guilty of improper excesses in the prosecution of a war whose object was originally lawful.” 

While prisoners of war are entitled to humane treatment and protection, Vattel went on to argue, they are still subject to the prosecution of law when it is appropriate. “As soon as your enemy has laid down his arms and surrendered his person,” he wrote, “you have no longer any right over his life, unless he should give you such right by some new attempt, or had before committed against you a crime deserving death.” This was precisely the principle that the military commission tribunal applied in its trials of the Dakotas. The incidents of murder and rape with which some defendants were charged were crimes under military law, as well as violations of civilian criminal law. In light of this, even prisoners who were otherwise protected as prisoners of war could still be charged and tried for crimes they had committed during the war.

Culture, in and of itself, is not an adequate defense against charges of war crimes, especially not when the culture in question subordinates itself to the victors’ laws of war to secure the protections of those laws once the war is over. Under those circumstances, the U.S. Army had sufficient jurisdiction and legal grounds to prosecute those Dakotas who were implicated in war crimes such as rape and murder, and the utterly flawed trial process itself does not change that salient fact.

There may be no historical precedent where a belligerent facing enemy actions it believed to be reprehensible and illegal subordinated its own laws, customs, and military regulations to find some way of accepting those actions.

It is also undeniable that the U.S. military, though ostensibly adhering to moral and legal codes that prohibit the targeting and killing of protected noncombatants, has occasionally failed to abide by those laws. Perhaps the most egregious example was in World War II, when the U.S. military obliterated cities in Germany and Japan with saturation bombing. The civilian populations of those cities were deliberately targeted in a controversial belief that doing so would break the enemy’s will to continue the war. Hundreds of thousands of civilians were killed, including untold numbers of women and children. In almost any other circumstance, those people would almost certainly have been classified as victims of war crimes. U.S. Army Air Corps General Curtis LeMay himself, who directed the firebombing campaign against Japan that killed more than 220,000 civilians, later said, “I suppose that if I had lost the war, I would have been tried as a war criminal.” The existence of a culture or doctrine that permits indiscriminate killing is indefensible whenever it occurs, and it remains the responsibility of law to confront such injustices even generations after the event. MHQ

John A. Haymond is the author of Soldiers: A Global History of the Fighting Man, 1800–1945 (Stackpole Books, 2018) and The Infamous Dakota War Trials of 1862: Revenge, Military Law, and the Judgment of History (McFarland, 2016).

Societies throughout history have struggled with the matter of who, or what, can be a legitimate target for military action

When a Roman army under the command of Scipio Aemilianus besieged the city of Carthage in 146 bce, it was the final act of nearly a century of bitter warfare between the two empires. One of the most familiar stories of that war says that when the Romans laid waste to the Carthaginian capital, they also sowed the surrounding fields with salt to ensure that the city could never thrive again. That detail was an invention of writers in later centuries, but it invokes a question modern laws of war are still trying to resolve: How should we regulate the use of the natural environment as a weapon of war?

Ancient warfare was never noted for its restraint. Salted fields or not, Carthage was wiped out—its cities razed, its civilian population slaughtered or enslaved—and it was not the only ancient or medieval society to suffer that fate. By the time of the Thirty Years War in Germany in the 1600s, warfare that deliberately destroyed civilian and environmental systems was so devastating that it inspired efforts to restrain it under law. Beginning in the 19th century, international conventions sought to limit the worst excesses of war, but these emergent laws still allowed civilians to be targeted when necessary. This was the concept of proportionality—the idea that otherwise reprehensible tactics in warfare might be permissible in certain situations or to certain degrees. The problem, of course, is always the question of whose perspective determines the necessity or defines the degree. “Proportionality,” Gregory M. Reichberg of the Peace Research Institute Oslo notes, “is notoriously difficult to handle since it seems to call for comparison of incomparable things.”

In 1899 the Hague Convention on the Law and Custom of War on Land tried to resolve the problem of proportionality but in a completely self-contradictory way. It declared that armies were not to deliberately “destroy or seize the enemy’s property” but allowed for precisely that type of violence whenever “such destruction or seizure be imperatively demanded by the necessities of war.” This language, however, obviously gave individual belligerents far too much freedom to decide what was “necessary” in their wars. The Second Hague Peace Conference of 1907 did not appreciably clarify the matter.

In trying to establish codes of lawful warfare, societies have always struggled with the matter of who, or what, can be a legitimate target of military action. The principle of proportionality seeks to limit lethal force to an “acceptable” balance between the expected destruction of property and loss of life caused by military action on the one hand and the anticipated tactical or strategic advantage gained by it on the other. Not surprisingly, wars have seldom been fought with such forbearance, even those supposedly governed by international convention.

As many as 50 million civilians died during World War II, with millions of those deaths resulting from the disease and starvation that are war’s eternal handmaidens. One issue that contributed to that enormous human toll was the way the natural environment was used as a weapon of war and how such tactics factored into the development of legal concepts of proportionality in armed conflict.

Dikes that hold back the sea and control rivers have always presented a tempting target for military planners. In April 1945, when the war in Europe was finally coming to its protracted, bloody conclusion, the Canadian Broadcasting Corporation reported that Dutch farmland was underwater and people were fleeing for higher ground after the retreating Germans destroyed a seawall at the Zuider Zee dike, potentially devastating a country where millions were already starving. The CBC correspondent said that destroying the dike had no military purpose—that Germans did it “for no reason but bloody-mindedness.” 

The CBC broadcast made no mention, however, of an Allied operation of the previous October in the Scheldt estuary of Belgium near the crucial port city of Antwerp. The Allies had seized the port, but they did not control the sea approaches because the Germans still held fortified positions on outer islands, of which Walcheren was the most important. German fortifications on the island were thus legitimate military targets, but the bombers didn’t attack them. 

On October 2, 1944, Allied aircraft dropped leaflets warning the civilian inhabitants of Walcheren Island to leave immediately. It was a pointless gesture since the German army did not allow civilians to move on or off the island. The very next day, 240 British bombers attacked the seawall that protected the island from the Atlantic tides, breaching the dikes in four places. The ensuing flood covered some 80 percent of Walcheren Island in seawater. The initial bombing raid killed 152 Belgian civilians; nearly 50 more drowned in the uncontrolled tides that covered the island that evening.

Tragic as that was, it was nothing compared to an earlier instance of dike destruction as a military tactic. In that case, however, the appalling human suffering was not inflicted by an enemy.

In 1938 China was locked in the Second Sino-Japanese War, and the Chinese were losing. The 10-year internecine conflict of the Chinese Civil War between Mao Zedong’s Communists and Chiang Kai-shek’s Nationalists was eclipsed by the mutual threat of Japanese invasion and occupation, but for Chinese civilians the only real change was the name of the war that was destroying their society. One of the most notorious horrors of 20th-century warfare occurred from December 1937 to January 1938, when the Japanese army carried out a protracted orgy of murder and rape of Chinese citizens in the city of Nanjing. Even if the higher estimate of 300,000 civilian deaths in the massacre is inflated, it was by all definitions a war crime on a horrendous scale. Five months later even more civilians died at the hands of the Chinese.

In June 1938 Nationalist Chinese forces used the ancient dike system of the Yellow River as a weapon in their war against the Japanese invaders. They breached the dikes at Huayuankou in an attempt to halt the inexorable Japanese advance into the province; the flood that followed inundated hundreds of thousands of acres of countryside and killed more than half a million Chinese civilians. More than a million people were forced to abandon homes, farms, and crops, and even after the floodwaters receded, the area remained an agricultural wasteland for years. As a military decision it was an act of strategic desperation—the Japanese simply reoriented their attack and were only delayed by a matter of months. The perceived military necessity of destroying the dikes was never worth the horrific cost in civilian lives.

Even by World War II no international convention had yet attempted to apply specific definitions of proportionality to laws of war. That followed soon after. The Geneva Convention of 1949 established limited instances where environmental destruction would be proportional and identified three acceptable scenarios: flushing-out operations, where the natural environment shielded the enemy; protection tactics, when the environment could be used defensively; and, most controversially, scorched-earth operations, which permitted “wholesale destruction…when carried out with the intent to deprive the opposing force of material essential to the war effort.” The breaching of the Yellow River dikes in 1938 would seem to fit the second definition in that list—protection tactics—but the appalling loss of Chinese civilian lives was out of all moral proportion to the military advantage. 

This evolving theory of proportionality in warfare was further expressed in the 1956 edition of the U.S. Army’s Field Manual on the Law of Land Warfare, which stated that “a condition of war between two States” should be understood to mean that “every national of the one State becomes an enemy of every national of the other,” though they “must not be made the object of attack directed exclusively against them.” Most important, however, the manual then noted that “loss of life and damage to property must not be out of proportion to the military advantage to be gained.” It was, again, an attempt to reconcile two contradictory ideas that defied simple interpretation.

This was the moral dilemma that American military strategists wrestled with in the air war against North Vietnam. The Red River, crucial to Vietnamese agriculture and commerce, was controlled by an extensive system of massive earthwork dikes. As such, the dikes presented a very tempting target to American bombing missions. They were also of great propaganda value to the North Vietnamese government, which in 1972 used the long-running Paris peace talks as a platform to accuse the United States of deliberately attempting to destroy the dikes in an illegal and immoral effort to flood thousands of acres of farmland and starve the civilian population. American war planners actually had given serious consideration to bombing the dikes but ultimately decided against concentrated attacks on the river protection system. U.S. restraint in targeting the dikes was based on tactical practicality, not proportionality—anticipated limitations in bomb efficacy and political expediency rather than moral issues were apparently the deciding factors. In fact, President Richard M. Nixon responded to North Vietnamese criticism by stating that the U.S. military could have destroyed the dikes if it had wanted to. As it was, the serious flooding from breaks in the Red River dikes in 1972 was the result of typhoon damage rather than military action. Completely separate from this controversy was the American use of such toxic herbicides as Agent Orange and Agent Blue, which defoliated millions of acres of forest cover, crops, and other vegetation in Vietnam, Cambodia, and Laos.

In 1976, Protocol I Additional to the Geneva Conventions of 1949 represented another step in the doctrine of proportionality when it declared that combatants should not “attack, destroy, remove or render useless objects indispensable to the survival of the civilian population, such as foodstuffs, crops, livestock, drinking water installations and supplies and irrigation works, for the specific purpose of denying them for their sustenance value to the civilian population or to the adverse Party, whatever the motive, whether in order to starve out civilians, to cause them to move away, or for any other motives.” Twenty-four years later, the U.S. Army, in its Operational Law Handbook, defined this policy by stating that Protocol I “does not employ the traditional balancing of necessity against the quantum of expected destruction. Instead, it establishes this level as an absolute ceiling of permissible destruction.”

As it stands today, the theory of proportional violence in lawful warfare, especially in relation to environmental targets, is most often applied with that rather grim definition in mind—that belligerents may cause as much devastation as they decide is necessary within the limitations of “permissible destruction.” MHQ

John A. Haymond is the author of Soldiers: A Global History of the Fighting Man, 1800–1945 (Stackpole Books, 2018) and The Infamous Dakota War Trials of 1862: Revenge, Military Law, and the Judgment of History (McFarland, 2016).

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This article appears in the Summer 2021 issue (Vol. 33, No. 4) of MHQ—The Quarterly Journal of Military History with the headline: Laws of War | Matters of Proportion

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On December 11, 1917, at sunrise, 13 men were hanged on a single gallows just outside Fort Sam Houston in San Antonio, Texas. Nine months later, six more men were hanged at the same spot. The condemned were all African American soldiers from the U.S. Army’s 24th Infantry Regiment; the events that brought them to that end, and the courts-martial that sent them to the rope, are a little-known episode in the history of the nation’s involvement in World War I and the experience of Black soldiers in its racially segregated army.

When the United States entered the war on April 6, 1917, the War Department began establishing temporary training camps across the country to accommodate the Regular Army’s rapid expansion. Communities eager for the economic boost the camps would provide rushed to nominate their cities as locations for the new posts. Texas was already home to several permanent army forts, and other cities in the state hoped to get their turn at the federal trough. When it was announced that Houston had been selected for a training facility to be named Camp Logan, the citizens of the city celebrated.

The jubilation was muted, however, when the army announced that it was posting the 3rd Battalion of the 24th Infantry Regiment to guard the training camp while it was being constructed. The 24th was one of four all-Black regiments in the Regular Army. It had an excellent service record, but to many of Houston’s White citizens the only thing that mattered was that the regiment’s soldiers were Black.

In 1917 Texas had some of the most restrictive segregation laws in the country. The prospect of Black soldiers being garrisoned in Houston was regarded by some White citizens of the city as an outright insult. Owners of businesses in Houston were dismayed for more-pecuniary reasons, since the city’s Jim Crow laws meant that the Black soldiers would not be able to patronize most businesses. Nonetheless, civic leaders hastened to assure the army that the city would welcome the soldiers no matter the color of their skin. That was either a naive assumption or a deliberate falsehood. 

The 3rd Battalion arrived on July 29, and trouble began almost immediately as the new arrivals’ expectations of fair treatment collided with Houston’s entrenched racial animosities, enforced by a police department the army later described as having “a reputation for treating negroes badly.” Matters came to a head on August 23. Two Houston policemen, Lee Sparks and Rufus Daniels, arrested Private Alonso Edwards for being disorderly; Sparks later boasted that he “beat him until his heart got right.” A short time later one of the 3rd Battalion’s noncommissioned officers, Corporal Charles Baltimore, arrived on the scene and attempted to find out what had happened to Edwards. Sparks subsequently claimed that Baltimore was insolent, but witnesses testified that Baltimore did nothing more than ask the policemen what they had done to Edwards and had crossed his arms when speaking to them.

Regardless of how Sparks chose to interpret Baltimore’s behavior, the fact was that the corporal was acting in his official capacity as one of the battalion’s provosts, or military policemen. The army’s subsequent investigation determined that the corporal, “as a part of the duty required of him, made inquiry of Officer Sparks as to the circumstances of the arrest of the soldier.” Sparks, however, was enraged that a Black man dared question his actions. He drew his pistol and fired at least three shots at Baltimore, who was unarmed, and then chased him into a nearby house, where he beat him nearly senseless before arresting him.

Back in the 3rd Battalion’s camp, word of the altercation spread quickly through the ranks, but the rumor was that Sparks had actually killed Baltimore. Major Kneeland Snow, the newly installed battalion commander, sent his adjutant to retrieve Baltimore from police custody; unfortunately, word that Baltimore was alive did not spread as quickly as had the rumor that he was dead. It may have been far too late for it to matter anyway: Many soldiers in the 3rd Battalion had already decided they had taken enough abuse from Houston’s police.

 Soldiers began taking rifles from the weapon racks and filching ammunition from the company supply tents. As evening fell, Snow attempted to regain control of the rapidly deteriorating situation and ordered the battalion to muster. He tried to ameliorate the soldiers’ anger by assuring the men that Baltimore had done nothing to deserve the treatment he received from the police and promised that Sparks would be punished for his actions, but his speech failed to calm the mood. Then someone shouted: “There is a mob coming! Get your guns!” 

The officers’ tenuous control of the battalion shattered completely. A shot was fired—by whom it was never determined—and that was quickly followed by a wild fusillade of gunfire directed outward from the camp’s perimeter. Several men later testified that a soldier named Frank Johnson ran down the company street yelling, “Get your rifles, boys!”

The threat of an angry White mob was something with which every Black person in the South was all too familiar. Texas had a grim reputation for mob violence against Black citizens and for the terror tactic of lynching; even the army recognized that the specter of a lynch mob would be taken seriously by every Black soldier.

Pandemonium seized the camp. Vida Henry, I Company’s first sergeant, would later be accused of having plotted mutiny, although there remains considerable doubt as to whether he did. It’s fairly certain, however, that Henry then took the fatal step of assuming leadership of the uprising. In the absence of all their company officers, about 150 soldiers marched out of camp, shouting that they would go to the police station and avenge themselves on the policemen who had persecuted them since their arrival. Henry set a rear guard on the column with orders to shoot any man who fell out of the march or who attempted to return to camp. They were all in it together now, even those who may have been reluctant participants. “If we die,” one of the soldiers declared, “we will die like men.”

Back in camp, Snow completely lost his bearing and his nerve. He telephoned Houston’s former chief of police and was frantically trying to explain what was happening when the line went dead. The chief later testified that Snow was so hysterical that he was nearly incomprehensible. A few moments later, Snow abandoned his post and fled the camp.

Meanwhile, the soldiers were heading deeper into town. Some Houstonians would later claim that in the hours before the riot they overheard soldiers threatening to kill all White people, but the soldiers’ actions indicated a rather different objective. They shot at the porch lights of houses as they passed, apparently to mask their movement, and fired on several vehicles they encountered in the dark. In at least two of these incidents, citizens who had no part in the trouble and no association with the police were killed, probably in error. In most cases, however, the soldiers clearly indicated that they were not interested in indiscriminate killing. When a civilian ambulance ran into Henry’s column, the soldiers shot out its tires and ordered it to turn around, but they did not harm the crew. One Houston resident, Maude Pitts, testified that when she stumbled into the midst of the soldiers that night, one of them told her, “Get away from here, White lady, we don’t want to kill you, but we are after the White policemen who have called us names and have been beating our men up.”

A short time later Captain James Mattes, a National Guard officer whose company had been ordered to quell the riot, ventured out ahead of his unit in a civilian automobile driven by Edwin G. Meineke, a civilian police officer. In the near total darkness, the jittery soldiers, on seeing uniforms, assumed that the men wearing them were policemen. They fired on the car and killed both Mattes and Meineke. Another National Guard officer later stated: “I am fully convinced that Captain Mattes would never have been shot if he had not been in the car with a police officer. I believe that the negroes thought he was another policeman.”

The killing of Mattes and Meineke completely undid the already shaky resolve of most of the soldiers. Fighting with racist policemen at least had an air of justifiable retribution about it, but shooting a uniformed army officer in the performance of his duty was something else entirely, and most of the infantrymen, professional soldiers as they were, wanted no part of that. The column began to dwindle as more and more men took advantage of the darkness to slip away and try to get back to camp. Henry refused to return with them, but he no longer held the leadership of the uprising. He remained alone as the soldiers, now more like a rabble, began straggling back to camp. The next day he was found dead of a gunshot wound. It was reported that he had committed suicide, but the official coroner’s inquest suggests he was murdered.

When the violence ended, the army immediately moved to gain control of the situation that Snow had mishandled so badly. Houston’s district attorney demanded the surrender of all accused mutineers for civilian prosecution, but the army refused, having quickly concluded that the Houston incident “could be characterized in only one way and that as mutiny.” Mutiny was a military crime, and as far as the War Department was concerned all other crimes committed during the riot resulted from it. The alleged mutineers would face an army court-martial, not a civilian trial.

Major General John W. Ruckman was commander of the U.S. Army’s Southern Department, which meant the mutiny and the unit involved all fell within his military jurisdiction as convening authority of courts-martial in the case. For whatever reason—a desire to quell the increasingly vitriolic rhetoric coming from Texan civil authorities or to demonstrate firm military discipline—Ruckman decided to prosecute the accused mutineers as fast as possible.

The first court-martial, United States v. Nesbit, convened at Fort Sam Houston in San Antonio just five weeks after the mutiny. Sixty-three men of the 3rd Battalion were simultaneously tried on charges of disobedience of lawful orders, mutiny, assault with intent to commit murder, and murder. It was the largest court-martial in the U.S. Army’s history, and from the outset it appeared that the odds were stacked against the defendants. The defense was represented by just one officer, Major Harry S. Grier, who was to serve as single counsel for all defendants. The prosecution was represented by a team of experienced trial lawyers who had more than a month to prepare their case. Grier had taught law, but he was not a bar-certified attorney and had only two weeks to muster his defense; his primary qualification was that he was “available.” Further controversy developed when a key witness for the defense, Captain Bartlett James, was found dead under suspicious circumstances just days before the trial began. His death was ruled a suicide.

From the outset, serious flaws in the prosecution’s case were apparent. If some men in the 3rd Battalion had risen in arms against the orders of their officers, they were guilty of mutiny, but the government was required to prove their guilt beyond reasonable doubt. Much of the prosecution’s case hinged on the testimony of soldiers who were themselves accused of participating in the violence, which raised legitimate questions about possible self-­serving motivations for some of that testimony. Several defendants were accused of instigating the revolt or having personal culpability in several of the killings that night, but the evidence against others was much less conclusive. The army never actually proved the existence of a mutinous conspiracy.

Nonetheless, on November 30, just 29 days after the trial began, the prosecution rested its case and the officers of the court-martial retired to consider their verdict. Two days later they announced their findings: five acquittals and 58 convictions. Forty-five men were sentenced to terms of imprisonment ranging from two years to life, and 13 men were to hang. Corporal Baltimore was one of them.

Ruckman then made a decision that would forever stain the court-martial: He ordered the verdicts and sentences to be kept secret and set the date of execution for December 11, allowing no time for external review or appeal of the sentences. On the evening of December 10, the condemned men were moved from the Fort Sam Houston guardhouse and sequestered in one of the post’s cavalry barracks. There they were permitted to write final messages to their families and friends. Private Thomas Hawkins wrote to his parents: “Dear Mother & Father, When this letter reaches you I will be beyond the veil of sorrow….I am sentenced to be hanged for the trouble that happened in Houston Texas altho I am not guilty of the crime that I am accused of.” Other men also swore to their innocence.

In the predawn darkness the next day, the 13 soldiers were driven to the outskirts of Fort Sam Houston, where the post engineers had erected a gallows about 100 yards from the overgrown banks of Salado Creek. Down the slope, 13 freshly dug graves waited. Surrounded by a cordon of infantry and attended by a local minister, the condemned men were led up the gallows steps. An eyewitness wrote that they remained composed and calm and conducted themselves with remarkable dignity. At one point, led by Private Johnson, they began to sing, quietly and in unison. 

At 7:17 a.m., one minute before official sunrise, the trapdoor was sprung. After a mandated interval medical officers confirmed that the men were all dead, and their bodies were cut down and placed in raw wooden coffins. Each man’s name was written on a piece of paper and placed inside a soda bottle that was sealed inside the coffin with him. After the burial the scaffold was disassembled, and all traces of the execution were removed.

Six days later, a second court-martial, United States v. Washington, convened to try the cases of a further 15 men of the 3rd Battalion. That trial concluded after only five days and produced 10 prison sentences and five death sentences. This time, however, there would be no secretive rush to the gallows like the one Ruckman had arranged after the first court-martial. The announcement that the first 13 men had been executed without executive review or chance of appeal had caused public outrage, and African American civic leaders petitioned the government to ensure that such a thing could not happen again. The War Department directed that execution of sentences be suspended pending review by President Woodrow Wilson, and two weeks after the executions the Articles of War were hastily amended by General Order No. 7, which established that no sentence of death handed down by a military court inside the territorial boundaries of the United States could be carried out until after the president had personally reviewed it.

With that stipulation in place, the second court-­martial’s sentences were forwarded to the War Department. While the review process was underway, the third and final court-martial, U.S. v. Tillman, convened to try the remaining 40 accused mutineers. When that trial concluded on March 26, charges against one soldier were withdrawn and two men were acquitted. Twenty-six men received prison sentences, and 11 were sentenced to death.

The army’s handling of the first executions had angered major segments of the American public just when the nation needed the support of all citizens in the war effort. Black Americans were incensed at how the soldiers of the 24th Infantry had been treated, both by Houston’s police and by the army’s judicial system. African American newspapers openly questioned whether Black men should wear the uniform of a country that treated them so badly. Secretary of War Newton D. Baker warned of this in a letter he appended to the second round of sentences when he passed them on for Wilson’s review. “I presume you may already have heard it,” he wrote, “but I beg to assure you that it is true that throughout the Southland generally the masses of negroes consider the execution of the thirteen as ‘a lynching.’” He then showed the president which of the condemned men were convicted of specific acts of murder and which of general participation. Wilson approved all five of the death sentences in the Washington case and commuted 10 of the death sentences in the Tillman case to imprisonment.

The army then moved to carry out the final executions. On the morning of September 17, five men went to the gallows. After the hanging, they were interred by the creek beside the 13 soldiers hanged earlier. But there should have been six bodies to bury, not five.

Three days later an unsettling telegram from the War Department arrived at Fort Sam Houston. “Morning paper reported execution of five of the Twenty-fourth Infantry but did not report execution of Private Boone,” it read. “Not understand why Boone was not executed with the rest.” Somehow, in all the preparations, the army had overlooked the fact that Wilson had approved the execution order on Private William Boone. Boone had believed that his death sentence was commuted to imprisonment; now he learned that he was to die after all. There was more conclusive proof of Boone’s guilt than some of the other defendants—he had shot at close range one of the civilians killed in the mutiny—but his fate was perhaps the hardest. On September 24, a final procession took him out to the reassembled scaffold where his comrades had died, and there he faced the rope alone.

The events in Houston and the subsequent courts-­martial and executions were almost eclipsed by the closing months of the war, but the attendant controversies refused to fade away entirely. The factors that so antagonized the men of the 24th Infantry were repeated in the “Red Summer” of 1919 as Black troops returning from France were confronted by racial violence on an unprecedented national scale. African American commentators regarded the 19 soldiers executed at Fort Sam Houston as martyrs who had fought back against the demeaning conditions of Jim Crow segregation. The army viewed them as mutineers whose actions brooked no possible mitigation. Southerners who were committed to maintaining White supremacy saw them as the thing they most feared: Black men who would not “mind their place.” As years passed, the trials that convicted the men were increasingly condemned and criticized.

The problem, common in matters of military law, is that while there is much about the 1917–1918 courts-martial and sentences that can be accurately described as unjust, the fact remains that the proceedings were legal at least by appearance. The first round of trials was conducted under the Articles of War extant 1916, a code that allowed death sentences of military courts in time of war to be carried out without appeal or presidential review. Ruckman was therefore legally able to rush the first 13 hangings, but the revision to the Articles of War in January 1918 changed the law to ensure that could never happen again.

It was absolutely unfair that men on trial for their lives had only the services of a single officer as defense counsel, while the prosecution mustered both numbers and legal experience against them, but again, such practice was perfectly legal before it also was corrected by later changes in American military law. Because hanging was the mode of execution, some critics accused the army of carrying out a “military lynching,” but the crime for which the men were convicted, and not their race, may have determined the use of gallows. The Manual for Courts-Martial in use in 1917 stated, “Death by hanging is considered more ignominious than death by shooting and is the usual method of execution designated in the case of…persons guilty of murder in connection with mutiny.” 

Still, Ruckman’s decisions are hard to defend. While the wording of the 1916 Articles of War allowed him to execute the first round of death sentences without submitting them to review, military law did not actually require that he do so. A passage later in the same code provided that “any officer who has authority to carry into execution the sentence of death…may suspend the same until the pleasure of the President be known.” Ruckman was therefore authorized to wait until the sentences were reviewed, but he chose not to.

Overt racism is undoubtedly the single most important factor in this story, but the wording of the various articles under which these courts-martial were conducted contained no reference to race. Mutiny is a crime against military law regardless of the race of the soldier who commits it, and the legal language of the Articles of War was concerned only with the identities of the accused soldiers under the law. It is completely appropriate, however, to question whether they were actually judged without bias. One might also ask why the court chose not to exercise its full prerogative in the matter of mitigation. Military courts are rarely willing to consider any exculpation for an act of outright mutiny, but the officers of the courts-martial still had the option of extending mercy in the form of prison sentences rather than imposing the ultimate penalty of death.

Three groups can be said to share the greatest responsibility for how the Houston incident played out. First, the city of Houston, with its combination of Jim Crow laws, an abusive police force that used physical violence to enforce those laws, and the entrenched attitudes of Southern racism that upheld them, was the undeniable catalyst of all the trouble. Second, the men of the 3rd Battalion who took up arms in an alleged act of mutiny were responsible for their decision to riot and disobey the lawful orders of their officers, even though one can sympathize with their actions as an understandable retaliation against racist abuse. The third party culpable in this sad history is the U.S. Army itself.

The army knew very well that Texas in 1917 was a hotbed of racist hostility against Black soldiers; it had been so for decades. Eleven years earlier, an officer commanding Black troops in the 25th Infantry had written, “The sentiment in Texas is so hostile against colored troops that there is always the danger of serious trouble between the citizens and soldiers whenever they are brought into contact.” Nothing had changed in the interim, and thus the army failed in its first responsibility to its own men when it placed them in harm’s way, ignoring the racism of Houston’s Jim Crow laws. Rather than using its considerable power to insist that its soldiers be treated with the respect due U.S. servicemen, regardless of the color of their skin, the army placed the men of the 3rd Battalion in an untenable situation. Within the battalion itself, Snow’s deplorable lack of leadership was a critical factor. The inspector general’s investigation into the uprising blasted Snow for behavior that “demonstrated his unfitness to command” and recommended that he be court-martialed for dereliction of duty, but in one more failure of justice, he never was. Ruckman was never officially censured for his decisions in the courts-martial, but in May 1918 he was quietly relieved of his command, reverted to brigadier general, and sidelined for the duration of the war. 

Though the courts-martial that followed the Houston uprising are often overlooked in broad histories of World War I, they were pivotal events in the development of American military law and the history of racial segregation in the U.S. Army. These trials resulted in the largest mass executions of American soldiers in U.S. history, and they prompted lasting changes to the military judicial process. A century later, the story continues to unfold. In October 2020 a petition was presented to the secretary of the army to overturn the results of the 1917 courts-martial. MHQ

John A. Haymond is the author of Soldiers: A Global History of the Fighting Man, 1800–1945 (Stackpole Books, 2018) and The Infamous Dakota War Trials of 1862: Revenge, Military Law, and the Judgment of History (McFarland, 2016). His research into the 1917 Houston uprising was supported by a grant from the East Texas History Association.

The punishments meted out in the Lichfield courts-martial of 1946 underscored the long-held belief that military justice is far from fair.

In June 2003, four months after the United States invaded Iraq and toppled Saddam Hussein’s totalitarian regime, disturbing reports and photographs of the mistreatment and torture of Iraqi detainees in the American-controlled Abu Ghraib prison began surfacing, and pressure from the news media and human rights organizations eventually forced a full investigation. A U.S. Army report, released in February 2004, confirmed “numerous incidents of sadistic, blatant, and wanton criminal abuses” by “the military police guard force.” The torture and vile conditions at Abu Ghraib galvanized renewed armed resistance to the U.S. military occupation of Iraq.

In a different war, in a different country half a century earlier, another scandal involving American military abuses of prisoners shocked the nation, prompted official investigations and courts-martial, and ended the careers of soldiers implicated in the case. In the matter of the U.S. Army’s 10th Reinforcement Depot in Lichfield, England, however, the abusers and the victims were all American soldiers.

More than 200,000 enlisted service members had passed through the depot in 1944, either en route to their first frontline assignments in World War II or as they were returning to the front after being wounded or reassigned. Soldiers ended up in the depot’s guardhouse for such minor offenses as being two hours late returning from a pass, and the guardhouse was run with the intent of making it “the most miserable place in the world.”

Troubling allegations surfaced in Stars and Stripes and U.S. newspapers that soldiers confined in the Lichfield depot’s guardhouse were subjected to terrible abuse at the hands of guards and depot officers. Former inmates said they were beaten with clubs, kicked, made to perform calisthenics or stand “nose and toes to the wall” until they were unable to do so any longer, and kept in solitary confinement in dark, cold cells. Men who complained about insufficient rations were made to eat massive portions of food and then administered castor oil to induce vomiting and diarrhea.

The army responded only after an outcry from the American people, who were shocked by stories of mistreatment of their men in uniform. Even then, the military authorities seemed more concerned with putting the matter to rest as quickly as possible than undertaking any real effort to investigate the allegations and punish the perpetrators of the abuses.

When the initial investigation substantiated the charges of brutality and inhumane treatment at the Lichfield depot, the army convened a general court-martial on December 1, 1945, to try the men accused of “cruel and inhuman disciplinary treatment of stockade prisoners” during the previous winter. But if military authorities hoped that such action would calm the critics, they were surely disappointed in the legal maelstrom that ensued. The courts-martial erupted into monthslong snarls of personality clashes, perjury and recantation of testimony, countering charges, and repeated attempts by the lead defendant to trigger a mistrial.

The first courts-martial focused on nine former staff members of the depot. All the defendants were enlisted men, a fact that was not lost on most observers, including a soldier familiar with the case who, in a letter published in Stars and Stripes, said they were “scapegoats.”

It appeared from the start of the trials that nothing would go smoothly. The defense’s primary strategy was obfuscation and denial, which the prosecution argued was not for the benefit of the defendants but to protect senior personnel who bore the real responsibility. “It was immediately apparent that the witnesses for the defense were falsifying their testimony and that such falsification was apparently prearranged and preconcerted,” the trial advocate wrote in his official report of the first trial. “To prevent an obvious fraud against the government of the United States it was necessary to break down this falsification. This resulted in an extended trial and with the now well-known results of defense witnesses, officer and enlisted, recanting their former false testimony.”

Witnesses for the prosecution testified that they had suffered brutal treatment in the guardhouse. Private Robert Schwerdtfeger said that on one occasion he had been beaten by six guards using clubs, rifle butts, and their fists before being confined in solitary for five days on bread and water with no light or heat, no blanket, and no cot. Sergeant Joseph Miller testified that when he was supervising work details at the guardhouse he had seen Lieutenant Leonard Ennis, one of the depot officers, following a prisoner who was being forced to double time around the compound, striking him in the back with a billy club whenever he slowed down. 

Private James Jones, a former guard at the depot, testified that he had struck—and had seen other guards strike—prisoners and that repeat offenders were “worked over.” Prisoners testified that they were given only five to seven minutes to eat their meals, and those who complained were beaten by groups of guards. One soldier said he was beaten unconscious for refusing to eat a rotten potato. After regaining consciousness, he was put in solitary for 16 days and received only four loaves of bread for food. 

Private Edward Skul testified that he was in the guardhouse on two separate occasions. On the second occasion, the group he arrived with was asked whether any of them had been there before; the seven or eight who answered in the affirmative were taken to the latrine one at a time and savagely beaten. Skul also said that he and some other prisoners were punished for complaining to an inspecting officer that they didn’t have enough time to eat. Skul and four others were forced to eat two trays of food each, then administered castor oil and made to stand against the wall while they were racked with vomiting and diarrhea.

Sergeant Judson Smith, the former provost sergeant of the guardhouse, was found guilty as charged and sentenced to three years imprisonment at hard labor and a dishonorable discharge. The other enlisted defendants were given shorter sentences. The preponderance of evidence produced in these first trials finally forced the army to reluctantly turn its attention to the officers responsible for conditions at the depot. Its commander, Lieutenant Colonel James A. Kilian (who held the temporary rank of colonel); Major Richard LoBuono, the depot provost marshal; and Lieutenants Granville Cubage and Leonard Ennis were indicted. The first to be tried were the junior officers.

The defense produced numerous witnesses, mostly of officer rank, who testified that they never saw prisoners abused when they were at Lichfield. The depot chaplain dismissed the allegations of abuse out of hand, saying that prisoners were occasionally “shoved around” but insisting that “any man in the guardhouse will say he’s been mistreated.” The trial transcripts quickly filled up with ferocious arguments between members of the court as the legal proceedings careened ever closer to chaos. Some witnesses were rejected when it was shown that they were not at the depot during the period the investigation covered; other witnesses perjured themselves and then recanted; at one point the panel declared the defense counsel to be in contempt of court and then changed its mind; and the trial judge advocate, Captain Earl J. Carroll, made repeated official protests over what he described as attempts to intimidate or retaliate against enlisted soldiers who testified for the prosecution.

Carroll’s concerns were corroborated in April 1946, when seven enlisted men then in confinement on minor charges refused to testify at the court-martial of a former guard, Staff Sergeant James M. Jones. One of them, Private Otto Holt, told the court that he was being mistreated and feared further mistreatment if he testified.

It quickly became apparent that the problems at the depot went all the way to the top of the chain of command. In his trial, Cubage admitted falsifying his first testimony in the Smith case and said that Kilian had instructed him to do so. Defense counsel insisted that the accused officers were unaware of any mistreatment by depot staff, but the prosecution produced testimony refuting that. A former guard, Private William Morris, testified that Cubage once ordered him to beat a prisoner but then told him not to because the prisoner “was going to court the following morning” and the bruises would prove problematic. 

When Ennis took the stand in his trial, he testified that Kilian had chewed him out for being too lenient and said: “What are you running down there, a playhouse or a guardhouse? You’ve got to be tougher.” Because of this order, Ennis said, he told the guards under his command that “if they were not rough enough they would be relieved from duty.” He admitted telling guards that “they could ‘drive a man to the floor’ ” but claimed he did not intend his words to be taken literally. The finger-pointing and blaming continued, with every defendant claiming that his superiors knew full well what was going on in the depot.

Cubage was found guilty, reprimanded, and fined $250. His punishment, coming on the heels of the harsher prison sentences and dishonorable discharges that the enlisted defendants had received, produced another round of outrage from both military and civilian observers. The Harvard Crimson summed up many opinions in an editorial that concluded, “The military caste system is merely adding cruel insult to a long list of injuries.” The assessment seemed borne out when Ennis, whom numerous witnesses said was particularly brutal in his treatment of prisoners, was also convicted but was only reprimanded and fined $350.

As the trials of the more senior officers got underway, the army found itself dealing with a public relations crisis that worsened with every official blunder and misstep. In February 1946, when the Senate Military Affairs Committee sent forward a list of 349 lieutenant colonels recommended for promotion to full colonel, Kilian’s name was on it. “An embarrassed committee,” newspapers gleefully reported, “asked the Senate if it could withdraw the list” when Kilian was indicted. The House Military Affairs Committee received so many letters protesting the results of the Lichfield trials that a form letter was prepared for committee members to reply to their angry constituents. “Please be assured,” the letter said, “that this inquiry will continue until the reduction to a minimum of injustices is accomplished.” This blithe assurance was repudiated when Kilian went to trial in the summer of 1946 in Bad Nauheim, Germany.

Kilian’s defense counsel maintained that the colonel knew nothing about any alleged mistreatment of prisoners. “There must have been something wrong at Lichfield which was concealed from me,” Kilian said when he took the stand. “It looks like they have passed the ball to the old man.” His junior officers, he insisted, had acted without his knowledge or instructions. The defense argued that he was only “following orders”—the same philosophy that the international war crimes tribunal rejected when it was offered in defense of senior Nazi officials during the Nuremburg trials that were even then in session 150 miles away.

When Cubage was recalled as a prosecution witness in Kilian’s court-martial, he testified that during the trials of the enlisted guards he had “attended meetings in Colonel Kilian’s room in London, at which meetings the testimony to be given in the Smith trial was discussed. At these meetings Colonel Kilian said he hoped to obtain a mistrial.” If Cubage’s testimony was true, Kilian’s actions presented a clear case of a defendant attempting to interfere with witnesses, and Cubage was not the only one to make that assertion. As the prosecutor told the court: “We have in this case a situation without parallel to my knowledge to any trial before a military court. We have a high ranking officer, a full colonel of the regular army, contacting witnesses, bringing them to his rooms, instructing those witnesses as to their testimony, checking up on what the witnesses have testified to, and calling them back for criticism when the testimony does not agree with some prearranged idea of his own. If this were an ordinary court of justice I would ask for a bench warrant and have him placed in arrest immediately.” The court chose not to pursue the matter of witness tampering.

Never one to avoid confrontation, Kilian took the stand in his own behalf. After four days of Kilian’s testimony, Carroll, the judge advocate, recommended that he should face additional charges of “contempt of court, interference with witnesses, and conspiracy to administer cruel and unusual punishments to prisoners in custody.” When the court rejected these charges, Carroll resigned in protest. Adding to the procedural chaos, Colonel Buhl Moore, the president of the court, effected his own resignation from the court-martial panel by asking that his fitness be challenged for cause. The reason, he said, was “friction between himself and law members of the court.”

When Kilian’s court-martial concluded on August 29, 1946, the outcome echoed the earlier trials of his subordinate officers. He was convicted of permitting conditions that resulted in the mistreatment and degradation of American soldiers, but the panel acquitted him of having knowingly permitted the abuses at the Lichfield depot. His sentence: an official reprimand and a $500 fine.

The verdict infuriated almost everyone except Kilian’s superiors. “This wrist-slap satisfied no one but the Army’s brass hats, who were only too glad to see the whole unsavory mess over and done with,” the correspondent for Time magazine wrote. The editor of the Washington Post had an especially pointed rebuke. “Generals Yamashita and Homma were convicted,” he wrote, referring to the two Japanese commanders who had been executed following U.S. Army courts-martial earlier that year. “Is the principle of a commander’s responsibility for Japanese only?”

One person who wrote a letter to Congress expressed the outrage that many Americans surely felt over “the obvious travesty [of] justice of the disparity in sentences between enlisted men and officers, particularly Colonel Kilian.” A former officer wrote, “Sadism, brutality, and flagrant misuse of authority and responsibility has gone virtually unpunished, with such punishments as has been made apparently being in inverse ratio to the rank and measure of control involved.” To critics such as these, it was especially galling that Kilian was promoted to the permanent rank of full colonel a few months after his court-martial conviction.

This stark imbalance between punishments was echoed 58 years later when soldiers accused of abusing Iraqi prisoners at Abu Ghraib faced military justice. Two senior officers received reprimands and a brigadier general was demoted to colonel. Eleven enlisted soldiers, however, were court-martialed and received sentences ranging from terms of imprisonment, dishonorable or bad conduct discharges, fines, and reduction in rank. For many soldiers, it confirmed the rank-and-file’s long-held cynical belief that military justice is far from fair. “Different strokes for different folks,” the old barracks saying went, and the punishments handed down in two different cases in two different prisons half a century apart seemed to bear it out. MHQ

John A. Haymond is the author of Soldiers: A Global History of the Fighting Man, 1800–1945 (Stackpole Books, 2018) and The Infamous Dakota War Trials of 1862: Revenge, Military Law, and the Judgment of History (McFarland, 2016).

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This article appears in the Winter 2020 issue (Vol. 33, No. 2) of MHQ—The Quarterly Journal of Military History with the headline: Laws of War | Disparate Justice

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In 1756 British admiral John Byng failed “to use all possible means” to stop the French from taking Minorca. He paid for it with his life.

On March 14, 1757, Admiral John Byng was shot by a firing squad of Royal Marines on the quarterdeck of HMS Monarch, then lying at anchor in Spithead, England. Byng was the last British admiral executed by sentence of court-­martial, and his case has influenced military law, naval com­mand doctrine, and even literary satire. He was shot not for what he had done but for what he had failed to do.

At the time of his death Byng was a naval officer of nearly 40 years’ service, with 12 years’ experience at flag rank. He was a capable administrator, having held such posts as governor general of Newfoundland and commander in chief of the Royal Navy’s Mediterranean Fleet. He was not, however, a dynamic combat commander—in fact, his career up to the outbreak of the Seven Years’ War in 1756 was noteworthy for the relatively few combat actions he had seen.

Byng was probably not the ideal commander for the events that unfolded in the opening weeks of the Seven Years’ War. The Balearic Island of Minorca in the Mediterranean had been an important British military outpost since its capture in 1708 during the War of the Spanish Succession, and when diplomatic hostilities between France and Britain erupted into yet another war between the two hereditary enemies, the French sent a naval invasion force to take the island from the British.

Byng’s fleet represented the largest British naval force in the vicinity, and in May 1756 the Admiralty ordered Byng to proceed to Minorca’s relief. His instructions included a phrase that would be used against him with fatal effect in the subsequent court-martial: “If you find any attack upon that island by the French, you are to use all possible means in your power for its relief.”

From the outset, Byng was pessimistic about his mission. He argued that the military resources available to him were inadequate if the French were to appear in strength, and he believed that the fortress at Gibraltar was the more important strategic position. With that outlook, he made his first misstep by refusing to reduce Gibraltar’s garrison to augment the main Minorca stronghold of Fort St. Philip. His rationale was that the 700 soldiers he was directed to take to Fort St. Philip’s defense were too few to change the inevitable outcome and that carrying out the order would only result in a needless loss of men and resources.

Arriving at Minorca and finding it menaced by the French fleet, Byng made a half-hearted attempt to communicate with Fort St. Philip’s commander, but he recalled his ships before they had even reached the island. The following day, May 20, Byng engaged the French. Although the two fleets were almost evenly matched numerically, the French had a slight advantage in guns, and in a critical maneuvering decision that would later be called an error, Byng never fully engaged his fleet.

In a short and inconclusive sea battle, the French lost 38 killed and 184 wounded, while British casualties came to 45 killed and 162 wounded. The lead vessels of the British fleet were battered and several capital ships heavily damaged, but others, including Byng’s flagship, never closed to within effective range. After consulting with his senior captains, Byng decided there was nothing to be gained from continuing the fight and sailed back to Gibraltar, leaving Minorca to the French. Fort St. Philip held out against the besieging French for another month before finally capitulating when no other British force came to its aid.

Both the Admiralty and Prime Minister Thomas Pelham-­Holles, 1st Duke of Newcastle, were furious when they learned that Byng had essentially abandoned Minorca. Byng was immediately recalled to Britain to face a court-martial. Newcastle seemed determined to scapegoat Byng even before the court-martial convened, telling Parliament that the admiral “shall be tried immediately; he shall be hanged directly.” If Newcastle hoped to distract public opinion from his administration’s inadequate preparations for war by focusing the nation’s outrage on Byng’s conduct, his effort failed. His government fell in November 1756, and he was replaced by William Pitt the Elder.

Byng’s court-martial convened in December 1756, with four admirals and nine senior captains as judges. Charges were proffered against him under the 12th Article of War. If Byng’s bad luck had begun with a mission that sent him out inadequately equipped and insufficiently armed, as he insisted in his defense, he was even unluckier to face a court-martial at this time in the history of British naval law. Eleven years earlier the Articles of War had been revised to stipulate that capital punishment was the only penalty for a commander who was found guilty of having “failed to do his utmost against the enemy” in battle or pursuit. The words that had until then allowed for lesser punishments—“such other punishment as the circumstances of the offence shall deserve and the court-martial shall judge fit”—had been struck from the article.

The 12th Article’s somewhat open-ended phrase—“failed to do his utmost”—proved to be Byng’s undoing. That was the specific wording on which the court found him guilty, though it acquitted him on the charges of “personal cowardice and disaffection.” Even so, the court­-martial board reached its verdict with great reluctance because it had no latitude in determining the sentence. Death was the only sentence the law allowed.

The court-martial officers un­animously wrote a decision that asked the Lords of the Admiralty to petition the king for mercy. After all, no British admiral had ever been executed on such a charge before. As prime minister, Pitt did not share his predecessor Newcastle’s personal animosity toward Byng, and he petitioned King George II on the admiral’s behalf, telling the monarch that the House of Commons favored clemency. The king declined to exercise the royal prerogative for mercy, telling his prime minister, “You have taught me to look for the sense of my people elsewhere than in the House of Commons.” The king may have been less concerned with the merits of the appeal than the identity of the politician who was requesting it; considerable political enmity existed between Pitt and the king at that time. The king rejected appeals from other sources as well, including several from the court-martial judges themselves. Two vice admirals of the board of 12 who had convicted Byng flatly refused to sign the death sentence, as did the lord commissioner of the Admiralty, and the entire court recommended that his sentence be commuted. Nonetheless, the king allowed the execution to proceed.

Byng went to his death on a cold, stormy March morning. His coffin was brought aboard HMS Monarch, already inscribed with the words, “The Hon. John Byng, died March 14th 1757.” If Byng had lacked aggressiveness as a combat commander, he certainly did not lack personal composure or courage as he went to his fate. He refused a blindfold but was finally, reluctantly, convinced to accept it on the grounds that it would unnerve the firing squad to see his face as they aimed at him. Byng knelt on a cushion on the quarterdeck, tied the blindfold himself, and held up his handkerchief. He remained in that posture, motionless, for a long, silent moment and then dropped the handkerchief. At that signal, the firing party of six marines fired, killing him instantly.

In the years that followed, Byng was both pilloried and praised in the courts of public opinion and historical memory, with competing epitaphs dedicated to his disputed memory. Byng’s supporters characterized his execution as a judicial murder, and his burial marker declared him to be “a martyr to political persecution.” His case gained lasting recognition when Voltaire, the French author François-Marie Arouet, satirically referred to him in Candide (1759) with the line “Dans ce pays-ci, il est bon de tuer de temps en temps un amiral pour encourager les autres” (In this country, it is good to kill an admiral from time to time to encourage the others.)

Voltaire’s snide remark was surely far more accurate than many in the Admiralty would have wanted to admit. In fact, the Royal Navy had stiffened the penalties of the Articles of War in direct reaction to a perceived lack of dedication to duty on the part of officers in several incidents during the War of the Austrian Succession a decade before Byng’s disgrace. The concept of the “Byng Principle” became an entrenched part of the Royal Navy’s culture for years as a damning phrase that meant “nothing is to be undertaken where there is risk or danger.” British naval commanders were so concerned with this slander that they frequently undertook incredible risks in situations that had little apparent chance of military success, just to prevent the slur being leveled against them, and in so doing achieved amazing victories against very long odds.

In 1759 in the Battle of Quiberon Bay, Vice Admiral Edward Hawke imperiled his entire fleet to engage the enemy despite weather conditions so severe that conventional naval doctrine would have avoided battle. Emerging victorious against both the French and the weather, Hawke wrote, “I can boldly affirm that all that could possibly be done had been done.” It was a mentality that instilled an almost hyperaggressiveness in Royal Navy commanders through the period of the Napoleonic Wars, and from 1757 to 1815 at least half a dozen British naval officers demanded trial by court-martial to clear their reputations of any suggestion that they had failed “to do their utmost” against the enemy. If, as some critics said, John Byng was shot as a grim warning to other officers, the warning seemed to have had its effect.

The legal rigidity that had forced the 1756 court-martial to sentence Byng to death did not long survive him. At the height of the war with the American colonies in 1779, the Royal Navy’s Articles of War were amended to restore to the 12th Article the life-saving words that would thereafter allow military judges to select “such other punishment as the nature and degree of the offense shall be found to deserve.” MHQ

John A. Haymond is the author of Soldiers: A Global History of the Fighting Man, 1800–1945 (Stackpole Books, 2018) and The Infamous Dakota War Trials of 1862: Revenge, Military Law, and the Judgment of History (McFarland, 2016).

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This article appears in the Autumn 2020 issue (Vol. 33, No. 1) of MHQ—The Quarterly Journal of Military History with the headline: Laws of War | The Scapegoating of an Admiral

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In 1945 six American B-24H Liberators accidentally bombed Zurich, in neutral Switzerland. Two airmen were court-martialed for the error.

Neutrality in warfare has existed as a legal or social concept for centuries. It is a lofty ideal: that a nation can declare to the world that it wants no part in any quarrel beyond its borders, and then rely on the forbearance of warring neighbors to respect that declaration. Far too often, they do not. It is hardly surprising, then, that violations of neutrality fill the historical record. The earliest iterations of neutrality in the Western world were religious in nature, as in medieval times, when all combatants were to spare the church and its clergy from depredation and attack. But the protection was often illusory, and cloister and cleric frequently suffered the ravages of war, just as their secular counterparts did.

Throughout history, violations of neutrality in wartime have been both deliberate (to achieve a strategic goal or to avert a greater calamity) and accidental. The opening weeks of World War I provided some notable examples. Belgium had been guaranteed independence and neutrality by the 1839 Treaty of London, but in 1914 Germany deliberately violated the terms of the treaty when it chose to use Belgian territory as the most expedient route, under its Schlieffen Plan, to envelop the French army. Britain, honoring its commitment to defend Belgium’s neutrality, immediately took the field against Germany. It was perhaps ironic, then, that when the hasty British defense of Antwerp collapsed under the German assault in October 1914, an entire battalion of the Royal Naval Division crossed the Dutch border—in deliberate violation of Holland’s neutrality—to escape capture by the German army. In accordance with internationally recognized laws of war, the Dutch detained the British sailors for the duration of the war, an outcome the sailors no doubt preferred to imprisonment in a German POW camp.

Accidental violations of a nation’s neutrality are much more common. In World War II, five major European countries—Ireland, Portugal, Spain, Sweden, and Switzerland—refused to become belligerents in the conflict, or at least declined to become active participants, as the conflict engulfed the rest of the continent. Of all the neutral states, Switzerland found itself at greatest risk because of the long border it shared with Germany. As Allied air attacks against German cities intensified after 1942, encroachments into Swiss air space also increased. From 1940 to 1945, the U.S. Army Air Forces and the British Royal Air Force released bomb loads on Switzerland no fewer than 70 times.

The massed bomber formation tactics used in both daylight and nighttime bombing missions during the war markedly increased the risk of major damage or loss of life whenever British or American aircraft misidentified Swiss cities as German ones. The formations required high-­altitude flight patterns, which, particularly at night, understandably contributed to navigational and other errors that led bombers unwittingly off course and into Swiss territory. The single worst violation of Swiss neutrality, however, occurred in broad daylight. On April 1, 1944, a formation of nearly 50 Consolidated B-24H Liberators dropped 60 tons of bombs on the Swiss city of Schaffhausen. Forty people were killed, almost 300 were injured, and the city was severely damaged. The navigators and bombardiers in the formation lead had misidentified Schaffhausen as the German city Ludwigshafen am Rhein, about 146 miles to the north. An investigation determined that bad weather, high winds, and the misidentification of various terrain features had all contributed to the bombers’ error. The U.S. Army Air Forces issued an official apology, which was delivered in person by General Carl Spaatz (who reportedly chafed at the assignment), and the U.S. government paid more than $4 million in restitution for the error.

Allied aircraft bombed other major Swiss cities, including Geneva, Basel, and Stein am Rhein, during the war. The most notable incident came on March 4, 1945, when a formation of six B-24Hs of the 392nd Bomb Group (Heavy), Eighth Air Force, dropped 241/2 tons of mixed payload, consisting of high-explosive bombs and incendiaries, on Zurich. Five civilians were killed. Damage on the ground was considerably less than that inflicted on Schaffhausen the year before, but what made the Zurich case different from all others was its legal aftermath. After an initial investigation by the U.S. 2nd Air Division, two American officers were charged with violating the 96th Article of War.

Lieutenant William R. Sincock, the formation’s lead pilot, was accused of having “wrongfully and negligently caused bombs to be dropped in friendly territory.” The senior navigator aboard Sincock’s aircraft, Lieutenant Theodore Q. Balides, was held primarily responsible for the navigational error on which Sincock had based his ill-fated selection of a target. Sincock and Balides were in serious legal trouble, but at least the officers sitting in judgment of their case had themselves experienced the chaos and carnage of the air war. The presiding officer of the court-­martial was none other than James Stewart, the famous actor. Stewart’s appointment had nothing to do with his celebrity. In 1945 he was a full colonel in the Eighth Air Force and an experienced bomber pilot in his own right, with numerous combat sorties over Germany to his credit.

The case against the two aviators was predicated on the question of negligence—namely, that they had failed to take all reasonable steps to ensure that the target they identified was in fact German. The prosecution argued that inexperience was not a valid defense because Sincock had flown 22 combat missions, 16 of them as flight lead. The 392nd Bomb Group’s intended target for that day’s mission was the German city of Aschaffenburg, some 180 miles north of Zurich. Because it was a daylight raid, the altitude for the bomb runs was set at 20,000 feet. Sincock’s aircraft, as flight lead, was equipped with three separate electronic navigational systems: the G and GH radio cathode systems, which could both be jammed by the Germans, and the H2X radar apparatus, known as the Mickey. Sincock seemingly had no excuse for flying so far off course and dropping his bombs on Switzerland.

As the defense team showed, however, the mission parameters that day began to fall apart almost immediately after takeoff. The G and GH systems on Sincock’s aircraft both failed, necessitating a greater reliance on visual identification, or dead reckoning, of the ground target. Bad weather over the assigned assembly area, where the bombers were to form up to make their run on the target, forced the formation to scatter, with each fragmented group of aircraft looking for targets of opportunity that might appear on their return routes. The protocol in such situations was that any bomb dropped on Germany was a good bomb. Returning to England with an unexpended bomb load was regarded as full mission failure.

In the court-martial, Sincock readily took the stand in his own defense. He testified that the chaos in the skies above the assembly area meant that he had been forced to make a series of hard turns, both left and right, as well as several full circles. In all that violent maneuvering he lost visual contact with his formation commander, and repeated attempts to raise him on the radio received no response. With no operational electronic navigational aids, Balides and the two junior navigators aboard Sincock’s aircraft found that their best efforts to track their constantly changing position by dead reckoning simply could not keep up with the situation. When the small group of aircraft following Sincock’s lead finally broke away from the other bombers, the navigators’ consensus was that they were then probably 40 miles south of Stuttgart. They therefore believed they were near the Swiss border but still safely on the German side of the line. In fact, they had already strayed over the international boundary.

When the sporadically functioning Mickey scope showed a sizable town coming up on their withdrawal route, Sincock and his crew tried to identify it. Scanning the urban areas along the route on their charts, the crew thought the town was most likely the German city of Freiburg. As lead pilot, Sincock pressed his navigators for a more definite identification of this potential target, even though standard operating procedure dictated that anything that gave a return on the Mickey screen was a target of opportunity, as long as it was in Germany.

The navigators confirmed that the city they were approaching must be Freiburg. The bombardier, through his spotting scope, could only see portions of the town through the ground haze, but he identified several key terrain features that matched those of Freiburg, in particular a triangular patch of woods adjacent to a railroad marshaling yard. Antiaircraft fire began to rise up from the ground, further convincing the aircrews that they were over hostile territory (even though the Swiss regularly fired on Allied aircraft that intruded across the border). When the bombardier toggled the switch to release the payload, the aircrews believed they were above a German city.

When the court-martial convened on June 1, 1945, the defense mustered an impressive array of witnesses to speak to the challenges that had confronted Sincock and Balides. Navigators who had to rely on dead reckoning to track their course could deal with a hard turn or two, but repeated turns to the left and right made accurate navigation impossible. The defense didn’t dispute the prosecution’s charge that Sincock had led a bombing run on Zurich, but it offered compelling reasons why the court should view the incident as a tragic but absolutely inadvertent act.

Having each faced the operational problems that bedeviled Sincock and his crew, the experienced combat pilots on the board needed little convincing. Stewart kept his opinions of the case to himself while the trial was in session, but after Sincock and Balides were acquitted on all charges by a unanimous verdict, he said that he was pleased with the outcome.

The Zurich bombing incident was the only case in World War II in which American servicemen were formally prosecuted for an act that involved violating the neutrality of another country. The reason this case was brought to court-martial when other, more serious ones were not came to light shortly after the trial. The Adjutant General’s office concluded that the case went to court-martial so that the State Department, in its negotiations with the Swiss, could cite it as evidence of how seriously the United States viewed the incident. In 1949 the U.S. government agreed to pay $14.4 million in reparations to Switzerland for damages inflicted by American military operations during the war.

A similar bombing error occurred during the Korean War, when two American aircraft mistakenly attacked a Soviet airfield just inside the USSR border. The U.S. government formally apologized for the error and court-­martialed the two aviators responsible for the attack. They were both acquitted, like Sincock and Balides, and for precisely the same reason: Navigational error was held to be the cause, not criminal negligence.

It has been suggested that Allied bombings of Swiss territory were sometimes deliberate rather than accidental, but the case of one German city demonstrates that aircrews were often more inclined to be cautious than cocksure. The German town of Konstanz is almost surrounded by Swiss territory. All through the war, Konstanz deliberately left its lights on at night, making it indistinguishable from the neighboring Swiss town of Kreuzlingen. Allied bombers knew that Konstanz was there but could not identify it with enough certainty to be sure they would not bomb Kreuzlingen by accident. By cloaking itself in its neighbor’s neutrality, Konstanz, even though it was a legitimate target with war industries in its environs, was never bombed and survived the war intact.

John A. Haymond is the author of Soldiers: A Global History of the Fighting Man, 1800–1945 (Stackpole Books, 2018) and The Infamous Dakota War Trials of 1862: Revenge, Military Law, and the Judgment of History (McFarland, 2016).

[hr]

This article appears in the Spring 2020 issue (Vol. 32, No. 3) of MHQ—The Quarterly Journal of Military History with the headline: Laws of War | Mistaken Targets 

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In 1782, just a few years into its nationhood, the United States was forced to grapple with the issue of revenge as an instrument of war.

IN THE SPRING OF 1782, GEORGE WASHINGTON WAS A MAN IN THE GRIP of a seemingly intractable problem. The war against Britain was finally going well for the Americans, and the British defeat at Yorktown in October 1781 had signaled that American independence would eventually be won by force of arms. But the execution of an American officer by British loyalists threatened to reintroduce an element of bloody vengeance into a conflict already frequently marred by internecine hostility and accusations of atrocity and brutality on both sides. Just as the United States was poised to achieve its creation as a nation of honor and civility, it was forced to grapple with the issue of revenge as an instrument of war.

Even in the 18th century, pure revenge was generally regarded as beyond the pale of lawful warfare. Political leaders had long invoked the idea of revenge in order to rally public support for military action, particularly when some injury to national pride or security could be used to justify vengeance, but formal laws of war took a dim view of the vindictive sentiments in such rhetoric. An act of retaliation might be simple revenge under all the legal language, but the scholars of military law preferred to call it by other names.

Legitimate retribution al­ways had its place in warfare, but even the earliest codifications of military law recognized that acts of retaliation carried with them inherent risks. A tit-for-tat cycle of offense and response might precipitate an endless round of atrocity and retaliation, and with it an abiding mutual hatred. Diplomacy and negotiated settlement would be much harder to achieve in such conflict, creating a situation where fighting continued until one party was virtually annihilated. At the same time, no legal realist was prepared to suggest that an aggrieved nation at war should adopt a policy of saintly forbearance when it was wronged. Lawful warfare was conceived precisely to control the worst excesses of armed conflict and to limit the destructive potential of unrestricted war within the very flawed framework of human nature. The desire for retaliation was an understandable motivation and could even legally be defensible in war but never for the sake of revenge alone. Some acceptable expression of the natural desire for vengeance had to have a place in law.

BY THE TIME OF THE AMERICAN REVOLUTION, THIS CONCEPT WAS CODIFIED as the lex talionis—“the law of retaliation grounded in ancient ideas of retributive justice.” On its face it was perhaps rough justice, in that it allowed one belligerent party to answer an enemy’s illegal act or atrocity with a similar act, but the intent was clear. The act of retaliation had to be explicitly linked to the act of provocation: a hostage shot for a hostage hanged, a town burned for a town destroyed, and so on. Such speedy retaliation was thought to have a deterrent effect not offered by any form of resolution after the war.

Washington’s problem was simple in its details but fiendishly complicated in its development. On April 12, 1782, a group of loyalists under the command of Captain Richard Lippincott hanged a prisoner of war named Captain Joshua Huddy at Highlands Beach, New Jersey. The act was explicitly one of retaliation: When Huddy’s corpse was left hanging from the makeshift gallows, it was adorned with a placard stating that his execution was in response to previous executions of loyalist prisoners in Continental hands, specifically that of a man named Philip White. “We therefore Determine not to Suffer without taking Vengeance,” the placard read, “and thus begin and have made use of Captn Huddy as the First Object.” The loyalists stated their intent to “Hang Man for Man,” and concluded “up goes huddy for philip white.”

In the closing months of the war between Great Britain and its former colonies, the incident could not have come at a worse time for those in both countries who were seeking a negotiated end to the conflict. News of Huddy’s execution led to public outrage in the northeastern colonies, where newspapers and broadsides denounced the act—one branded it a “horrid and most unparalleled Murder”—while omitting the fact that loyalists had also suffered at the hands of the patriots. They insisted that White’s death, cited as the reason for Huddy’s execution, was not the unlawful execution of a prisoner of war but was rather the legal killing of a prisoner who had attempted to escape. They pointed to the precepts of lex talionis and demanded vengeance.

The matter quickly became an issue of official correspondence between opposing commanders. Washington wrote to his counterpart on the British side, General Henry Clinton, and threatened to authorize a response in kind if the officer responsible for Huddy’s death was not handed over to Continental authority for legal prosecution. “To save the innocent, I demand the guilty,” he wrote, making it clear that if he could not punish Lippincott himself, some other person would pay the price.

CLINTON WAS NOT INSENSITIVE TO THE PROBLEM, but neither was he inclined to relinquish British legal authority in the matter. As Clinton pointed out in his reply to Washington, a board of inquiry composed of British officers had already investigated the incident and found sufficient cause to court-martial Lippincott. Clinton insisted that he had not authorized Huddy’s execution, saying that such “acts of cruelty and persecuting violence are notoriously contrary to my own conduct and disposition (having never yet stained my hands with innocent blood).” He then warned Washington against allowing public sentiment to force a military response that might lead to greater wrongs. “To Sacrifice Innocence under the Notion of preventing Guilt, in Place of suppressing,” he wrote, “would be adopting Barbarity and raising it to the greatest height.”

Clinton proceeded with a court-martial against Lippincott. In June 1782, under the authority of General Sir Guy Carleton, who replaced Clinton as commander in chief of British forces, Lippincott was charged with the murder of Huddy, “a Prisoner of War to the Associated Loyalists, by hanging or causing him to be hanged by the Neck until he was dead.” That was not enough to mollify those on the patriot side who demanded blood for blood, and calls for some form of immediate reprisal mounted.

As a professional soldier, Washington was probably inclined to let the matter rest in British hands, at least until the court-martial produced its result. After all, if he required the surrender of a British soldier for a war crime, he might very well face the same situation in reverse later. And as details that emerged in Lippincott’s trial soon
made clear, Huddy was perhaps an appropriate candidate to be sacrificed under lex talionis. He had earlier hanged several British loyalists in incidents of debatable legality, and so the “man for man” spirit of his own execution seemed justified.

Washington, however, was not free to follow his own inclinations. Outside pressure, both political and public, required a more immediate response. He therefore ordered that a British officer currently in American hands as a prisoner of war be selected to pay for Huddy’s death if the British did not sentence Lippincott to hang. Mindful of the protocols of war, Washington ordered that the man chosen should be one who had been captured on the field of battle, who was not therefore protected under the framework of a conditional surrender. No such individual could be identified, however, so the Americans improvised. At the prisoner of war camp in Lancaster, Pennsylvania, 13 British officers held after Cornwallis’s surrender at Yorktown were assembled and ordered to draw lots. The British soldiers refused, citing their rights under the laws of war, so the lots were drawn for them. The unfortunate man (the paper drawn for him was actually marked “unfortunate”) was Captain Charles Asgill, a young officer in the 1st Foot Guards.

Rather than providing a solution, Asgill’s selection as the object of American vengeance only gave Washington more problems. Asgill himself immediately wrote to Washington in protest, pointing out that an act of reprisal against him was a violation of the agreement under which British forces had surrendered at Yorktown. He was correct, and Washington knew it. “I am deeply affected with the unhappy Fate to which Capt. Asgill is subjected,” he wrote, but he still insisted on some measure of retribution for Huddy’s death. Washington was by no means alone. The renowned patriot pamphleteer Thomas Paine insisted that Carleton was the moral agent in this drama, writing that if he did not surrender Lippincott to American justice, the British commander would bear the ultimate responsibility for Asgill’s fate “as if you had put the rope on his neck.” When Lippincott was acquitted by the British court-­martial on June 22, it seemed that Asgill was doomed.

Other observers feared the legal controversy might derail the slow steps toward a peaceful resolution to the conflict that were already underway. The British prime minister, Frederick North, 2nd Earl of Guilford, in a secret dispatch to Carleton, wrote of his concern that the matter “not provide an obstacle in the way of accommodation.” An anonymous writer in England insisted that an execution to avenge an execution would be “highly impolitic and improper,” calling it a “horrid course.” Carleton needed no argument in that direction; he said he believed that revenge under the thin veil of laws of war would only “lead to Evils and Misfortunes of the blackest and most pernicious Sort.”

If the question of Asgill’s fate had earlier left Washington between a rock and a hard place, now, following  Lippincott’s acquittal, he seemed to have a way out. Washington was willing—indeed, eager—to consider the sentiments of Americans like James Duane, a lawyer and Revolutionary leader from New York, who urged him to conclude the war “with the Humanity which a benevolent Religion, civilized manners, and true military Honour inspire.” His reluctance to adhere to the “man for man” code of vengeance and the eventual lessening of the public’s demand for blood reprisal proved to be Asgill’s salvation. In November the Continental Congress approved Asgill’s release. John Adams, one of the American emissaries in France, wrote that it was “so exquisite a relief to my feelings,” adding that “it would have been a horrid damp to the joys of peace” had the young British officer been hanged as threatened.

Washington wrote to Asgill personally, telling him that resolving the matter “without the effusion of the Blood of an innocent person is not a greater relief to you than it is to [me].” Since Asgill’s life was the one in peril, Washington’s words were perhaps a bit dramatic, but there is little doubt that the outcome was the one he had fervently hoped for.

The ancient idea of lex talionis was not invoked with such fervor in later American wars, but it had an echo in the Civil War. In 1864 Confederate colonel John Mosby executed three Union army soldiers in retaliation for the earlier execution of six of his men at Fort Royal, Virginia. He then wrote to Union major general Philip Sheridan and proposed that both sides resume treating each other’s captives as prisoners of war under protection of the laws of war. Sheridan agreed, and such acts of reprisal remained rare throughout that war.

John A. Haymond is the author of The Infamous Dakota War Trials of 1862: Revenge, Military Law, and the Judgment of History (McFarland & Company, 2016).

[hr]

This article appears in the Spring 2019 issue (Vol. 31, No. 3) of MHQ—The Quarterly Journal of Military History with the headline: Laws of War | A Neck for a Neck?

Want to have the lavishly illustrated, premium-quality print edition of MHQ delivered directly to you four times a year? Subscribe now at special savings!

Lethal diseases have ravaged militaries across the millennia. Enemy No. 1: poor sanitation.

IN MOST OF THE ERAS RECORDED BY MILITARY HISTORY, it was a reliable truism that an army could lose more men to disease than to the lethal efforts of its enemies. Diseases, particularly those of the insect-borne or water-specific types, have been responsible for untold millions of deaths in militaries across the millennia. Ironically, armies ravaged by disease have usually carried the seeds of their destruction with them in the form of poor field sanitation habits. After all, a sufficiently provisioned army of 10,000 men could produce about four tons of fecal waste every day; without adequate latrine facilities carefully situated away from water sources and field kitchens, it would only be a matter of time before debilitating, deadly diseases began rampaging through the ranks. In light of this, there is good reason to argue that the humble latrine was every bit as important to the waging of a successful military campaign as were good artillery, logistic support, sufficient ammunition, and well-trained troops.

Today in the U.S. Army, protecting soldiers from disease vectors is such a command priority that field sanitation doctrine is taught and enforced at all levels of military training and in every unit. Effective sanitation policies are a fairly modern development, however, gaining official acceptance and emphasis only after the inexcusable losses of the Civil War and Spanish-American War. Military traditionalists stubbornly resisted change. While medical officers argued for improved sanitation practices, tactical commanders did not always share their concerns or understand the relevant science, often with drastic consequences. As a military surgeon who served as a sanitary commissioner in the British Army in India wrote in 1868, “The recommendations of Medical Officers did not always meet with the attention they now do.” For the British Army, the dangers of such willful disregard were demonstrated all too clearly during the Crimean War—according to official sources, it lost 25 times as many men to disease as to enemy action during that conflict.

The importance of a reliable water supply and efficient field sanitation have always been recognized, to varying degrees, and no commander worth his rank has ever willfully ignored those necessities, especially if his army occupied a static position. Without proper precautions, a force that was stationary for more than a few days was at great risk of decimation from disease. The presence of too many men in a limited space could quickly turn a military encampment into a pestilential fever-zone, and no one disputed that. In the centuries before germ theory finally gained acceptance, however, the problems that inevitably developed when good sanitation was ignored were not as clearly understood. The greatest threats were cholera, typhus (after it made its first appearance around 1450), cryptosporidiosis, and dysentery in both its amoebic and bacillary forms.

Cautionary examples of the threat arising from poor sanitation abounded. Nearly a third of the population of Athens reportedly died of typhoid over a six-year period beginning in 430 BCE, an epidemic that brought down the state. Henry V’s famous victory at Agincourt in 1415 was all the more noteworthy because dysentery had killed or invalided as much as a fifth of his army during the earlier siege of Harfleur. Dysentery was such a recurring problem in siege warfare during the medieval period that it was called “the siege disease,” or “the bloody flux,” and it was rightly feared for its high mortality rate. In fact, Henry V himself died of the disease following the Siege of Meaux in 1422.

Coming into the modern era, as many as two-thirds of all deaths during the American Civil War were caused by disease rather than battle. The most lethal disease among some segments of the military population was the soldier’s age-old nemesis of diarrhea, which accounted for up to a fifth of all noncombat deaths. The Spanish-American War marked a notorious nadir in the history of the U.S. Army—deaths from disease in the training camps eclipsed actual combat deaths nearly seven to one. Unchecked disease has always been the great destroyer of armies, and most instances of disease in military situations originated from the prosaic problem of how to deal with human waste.

SOLDIERS THEMSELVES HAVE ALWAYS DISCUSSED THIS ASPECT OF WARFARE with more direct and unembellished language than have most historians. Soldiers are accustomed to rough living, but this facet of military life mattered because of how much it often added to their miseries. What was usually a simple and private function in normal life became, in combat conditions, a difficult, very public, and sometimes extremely dangerous activity. Soldiers cursed it, laughed about it, made coarse jokes about it, and even wrote poems about it, but no one ever forgot what it was like to live for weeks or months without a serviceable latrine. In soldier narratives from 1800 to 1945, the topic arises in all eras, in all armies, in every conflict.

The Italian Campaign of World War II was notorious for hard combat in rugged conditions. Monte Cassino was a terrible place to fight. Rocky terrain prevented the digging of fighting positions or trenches below ground level; the only cover that could be constructed was in the form of sangars, fortified positions made from walls of rock and stones. Even these were shelters of dubious efficacy, since German artillery had registered the approaches to the mountain so accurately that daylight movement was impossible without drawing immediate and effective fire.

“We were many times better off than the battalion directly facing the monastery, where throwing the contents of his lavatory tin out of the back of his sangar earned many a man a hail of mortar bombs,” a British soldier of the Irish Guards who fought at Monte Cassino remembered. “Just try sharing a rock hole about the size of two coffins with three others, then, in a prone position, lower your costume and fill a small tin held in the hand. The stink of excrement competed with the smell of death in every position. Bowels will not wait for nightfall.”

In frontline conditions where artillery and direct small-arms fire were constant threats, a man who left his hole or trench to relieve himself might not live long enough to pull his trousers back up. As a British NCO noted in his sector of trench in France in 1915, “to get up…in daylight would be, well, asking for the Huns to put daylight into one.” Men quickly got over their inhibitions or suffered the fate of the narrator in Kipling’s poem, The Refined Man: “I was of delicate mind. I stepped aside for my needs, / Disdaining the common office. I was seen from afar and killed.…”

A British lieutenant in the Devonshire Regiment, who fought in the muddy horror of Passchendaele in 1917, described the wretched and inadvertently egalitarian conditions of living for weeks in a hole in the ground with other men. “If, for instance, you wanted to urinate and otherwise,” he said, “there was an empty bully beef tin kept on the side of the hole, so you had to do it in front of all your men [and] then chuck the contents, but not the tin, over the back.”

In Passchendaele’s primitive conditions, where the combatants lived in mud-filled shell-holes (it was impossible to dig conventional trenches in the water-logged ground), men could not leave their positions when they were racked by attacks of diarrhea. Soldiers defecated in their bully beef tins and threw the liquid waste over the rim of their hole. “The men were hardened, but the life was terrible,” the Devonshire lieutenant remembered. “Another extra chore was that lime had to be spread on the back of the posts because open excreta was being chucked out and if you didn’t put down lime then when you came crawling out you’d be covered in it.” Diarrhea was rampant in the British ranks, most often because drinking water had been fouled by any number of contaminants.

The battlefields of World War I, in fact, were a nightmare for potable water. Units went into the trenches in rotation, and for the days or weeks that they were on the lines the only water resupply they received was what could be sent forward to them under cover of darkness. When that failed, they drank whatever water was at hand. That was always an option of last resort, but desperation would brook no fastidiousness. “The water we had to drink,” one soldier wrote in his diary when he was fighting in the vicinity of Hill 60, “was from a stagnant pond, the drainings from the ditches.” That was bad enough, he remembered, but there was an even worse postscript. A few days later he wrote, “We discovered a dead pig in our water pond.”

The monthslong fighting on the Somme in 1916 made simple things hard when it came to logistics and hard things sometimes nearly impossible. “There was only one place in the Somme where drinking water could be obtained,” an Australian soldier named Hugh Knyvett wrote. “The Germans…made it very difficult for us to get at it by shelling continually. They had the exact range, and it was only in the hour before dawn that one could get near the wells without meeting certain death.” Knyvett did not relish the prospect of dodging German artillery fire to get water, but there was no real alternative. “Of course, there was plenty of other water filling every hole around,” he remembered, “but this was not only thick with mud but had the germs of gas gangrene, and one knows not how many other diseases besides.” (Also known as “clostridial myonecrosis,” gas gangrene is a bacteria-caused infection that gives off a foul-smelling gas in the afflicted tissue, hence the name.) Another man who had fought at Passchendaele recalled its muddy horror years afterward: “We were so thirsty that we actually drank water out of shell-holes, and God knows what a shell-hole contains. It could hold anything—very often parts of a human body. But we were so thirsty we drank it cold and without boiling it, because you couldn’t get a fire very often.”

Even in conditions as difficult as the trenches of World War I, armies tried to push rations and water forward to the men in the lines, but many British soldiers complained that although tea was sent forward every day, it came in two-­gallon petrol cans, each carrying with it its own malady. “Well, those tins were baked, boiled—everything was done to them—but whenever you put a hot substance in them you still got petrol oozing out, and that gave the men violent diarrhea,” one soldier wrote. “But they had to drink it because it was the only hot drink they had.” For the men on the line, it was just one more element of misery in a situation that quickly exceeded all known bounds of misery. Still, some men found a bleak humor in their gasoline-tainted water. “There was a standing joke,” another British soldier recalled, “that if you were out there long enough you could tell the difference in taste as to whether the water came in a British Petroleum or a Shell can.”

AS VITAL AS CLEAN WATER IS TO AN ARMY’S HEALTH, most militaries as late as the early 20th century still failed to adequately provide dedicated containers for water resupply. The problems inherent in contaminated water were clearly identified and understood, but for whatever reason there was little standardized military response to the issue, even during World War II. U.S. Marines fighting in the sweltering heat and dust of Peleliu in the Palau Islands suffered the same physical ailments as had their predecessors at Passchendaele when water came in five-gallon cans that had previously held diesel fuel. No amount of cleaning and no method of scouring ever seemed to completely rid the cans of the fuel residue, and desperately dehydrated men drank the contaminated water knowing it would make them violently ill. Owing to the lack of foresight on the part of the logistics and supply chain, they had no other choice.

The prevalence of diarrhea in the field made proper latrine facilities all the more crucial, but in forward positions those essential stations were almost never adequate, either in terms of sanitation or security. Even rear areas of the front were not entirely safe if they were still within range of the enemy’s guns—artillery shells made no concessions for those moments when a man might be indisposed by a call of nature. A British officer recalled seeing a random German shell score a direct hit on the officers’ latrine in the artillery lines in France in 1915. “I was shocked to see a man still sitting there on the throne, and I thought he must be dead,” he wrote. “I ran as hard as I could and arrived to find [him] up and adjusting his trousers. He said with a grin, ‘It was lucky that the shell came when it did as I was feeling a bit constipated.’ ” It was not the first time shellfire could have been said to have loosened a man’s bowels, but in that case, it at least happened in a convenient setting.

Ernst Junger, who commanded an infantry company in the German army during World War I, described the latrine that was positioned behind his unit’s trench as being particularly vulnerable to enemy fire. At times, he wrote, “stray bullets from all directions seemed to have arranged a rendezvous for themselves at the latrine, so that we were often compelled to flee, holding a newspaper and trousers at half-mast. And for all that, it seemed not to have occurred to anyone to move this indispensable facility to a place of greater safety.”

The height of battle is, of course, an especially bad time to be stricken with diarrhea. During the Battle of Talavera in the Peninsular War in 1809, with both sides heavily engaged and the fighting well underway, a British officer found himself in just such a situation. As the commander of an artillery battery under heavy fire, he felt he could not go to the rear to relieve himself lest his men think he was trying to escape the ferocious cannonade of the French guns. Rather than going behind his battery, then, he “deliberately walked a hundred yards or so in front of the brigade, and disembarrassing himself of part of his clothing, yielded to the irresistible necessity of the case, after readjusting his dress, and calmly putting on his sword and sash, he returned leisurely to his post. The transaction excited a great deal of mirth, notwithstanding the heat of the action.” His insouciance solicited no small amount of admiration, as did the fact that he somehow survived.

THE ADVENT OF MECHANIZED WARFARE ADDED ITS OWN COMPLICATIONS to the requirements of human physiology. Tanks, after all, do not have toilets. As a New Zealand tank commander recalled of the fighting in Italy in 1943, “It was difficult to sort of carry out the demands of nature when you were in the tank all day, and so when you thought you [were] required to do something you put a shell up the spout, shoot off at something, wait until the shell case cooled down, and then you used it for a toilet and you put it out through the little hatch.”

The disease vectors of bacteria and vermin were exacerbated when a static battlefield was sweltering in hot weather. The fighting at Gallipoli in 1915 was never marked by the mud and cold that other campaigns of that war were notorious for; rather, it was a hellish environment of heat and dust and flies—flies on a biblical scale, reminiscent of the fourth plague of Egypt. The flies—the result of the human excrement and rotting corpses that littered the contested battleground—covered everything: the ground, equipment, food, and the men themselves. “One of the biggest curses was flies,” one soldier said of Gallipoli. “Millions and millions of flies. The whole side of the trench used to be one black swarming mass. Anything you opened, like a tin of bully, would be swarming with flies….They were all around your mouth and on any cuts or sores that you’d got, which then turned septic.”

“There were more flies on the [Gallipoli] Peninsula than there was sand on the shore, and they fought us persistently for every atom of food,” another Australian soldier wrote. “Getting a meal was a hard day’s work, for all the time you had to fight away the swarms, and no matter how quick you were with your fork, you rarely got a mouthful that hadn’t been well walked over, and it didn’t do to think where those flies had been walking just previously.” The flies laid eggs, which quickly hatched into maggots that infested the floors of the trenches where rotting corpses were covered by only an inch or two of dirt. “We lived in a headquarters of maggots—pale, wriggling, stinking, blasted things,” another soldier wrote. Another soldier who endured Gallipoli wrote: “Maggots are falling into the trench now. They are not the squashy yellow ones; they are big brown hairy ones.”

The flies feeding on decomposing corpses and human excrement spread a virulent form of diarrhea that troops called “the Gallipoli Trots” or “the Gallipoli Gallop.” As more and more men came down with dysentery, the slit latrines, already inadequate and overused, became a stinking horror. “If you’d looked in the latrines you’d have been sickened,” a British soldier said. “You’d think people had parted with their stomach or their insides. It was awful.”

Soldiers who fought the jungle campaigns in Burma, the Philippines, New Guinea, and other battlefields of the Pacific Theater in World War II were frequently ravaged by malaria, dengue fever, and other mosquito-borne diseases, but they also suffered from the full range of gastrointestinal ailments such as amoebic dysentery and cholera. When possible, sick men were sent to the rear, but in some situations medical evacuation was simply not an option. It was not an uncommon thing to see wasted, exhausted men still carrying their weapons and still in the fight, but with the seats cut out of their uniform trousers because they were stricken with nearly uncontrollable diarrhea.

Similar expedients were adopted in the previous century during the retreat of Napoleon’s Grande Armée from Moscow in 1812. The extreme cold of the Russian winter made the act of defecation extremely difficult, so men resorted to cutting open the seams of the backs of their trousers in order to be able to defecate without having to lower their breeches. Those who did not adopt this expediency sometimes found themselves in a terrible predicament. “Men who walked to the side of the road and unbuttoned their pants in order to answer the call of nature, a frequent one since many of them had diarrhea, would find to their horror that they were unable to button them up again,” Adam Zamoyski writes in 1812: Napoleon’s Fatal March on Moscow, his masterful account of the campaign. A French officer remembered seeing several soldiers and officers who could not button themselves up because of their freezing fingers. “I myself helped to dress and button up one of these unfortunates, who was weeping like a child,” he wrote.

German soldiers on the Eastern Front in World War II also found that the normally simple act of relieving oneself could be almost impossibly difficult in Russia’s bitter cold. Frost-numbed fingers could barely manipulate buttons, even partially divesting oneself of the necessary layers of clothing that kept one from freezing to death made every bowel movement an exhausting process, and exposed flesh froze unbelievably quickly. That reality continues to this day in certain climates, and more than one modern soldier, after months in the field, has listed a flushable toilet in a warm room as one of life’s greatest luxuries.

RECOGNIZING THE IMPORTANCE OF FIELD SANITATION, modern armies at the end of the 19th century began standardizing their health doctrines to address the need for proper latrine facilities. In 1918 the U.S. Army admonished its officers that any commander “who does not give this subject the proper attention must necessarily be a failure.” To that end, direction was given on the construction and use of latrine facilities in a variety of tactical environments. These ranged from the simple straddle trench to temporary box latrines with burn-out pits intended for longer use, as well as more permanent facilities designed to serve a large encampment. The danger of cross-contamination by flies and the risks to water sources was clearly understood, and much of the medical guidance was directed at controlling those specific risks. These measures were largely effective and when coupled with the advent of antibiotics were directly responsible for the decline in disease-related deaths during the wars of the 20th century. Yet officially mandated and medically prescribed practices were often not possible in the maelstrom of the battlefield, and in those situations soldiers simply endured as best they could.

The great military campaigns of history have succeeded or failed for many reasons, but often overlooked in all the important details of strategy, logistics, maneuver, and battle there remain the mundane but absolutely vital necessities of clean water and well-planned latrines. Armies that ignored those two essentials frequently found they had created an adversary more dangerous than any enemy that faced them across the field. MHQ

John A. Haymond is the author of Soldiers: A Global History of the Fighting Man, 1800–1945 (Stackpole Books, 2018), from which this article is adapted.

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This article appears in the Spring 2019 issue (Vol. 31, No. 3) of MHQ—The Quarterly Journal of Military History with the headline: The Waste of War

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ON JULY 17, 1944, THE SS E. A. BRYAN, A NEWLY COMMISSIONED LIBERTY SHIP, was moored to a pier at the Port Chicago Naval Magazine in Port Chicago, California, to load ammunition, bombs, and artillery rounds for the upcoming invasion of Tinian, in the Northern Mariana Islands. Under the glare of dockside lights, nearly 100 African-American stevedores rushed to transfer the munitions from depot to ship. Nearly all of them were young, and few were noncommissioned officers.

At around 10:18 p.m. there was a loud noise from the pier. Witnesses later described the sound as “metallic” and like that of “rending timbers, such as made by a falling boom.” An instant later the Bryan blew apart in a massive explosion that destroyed virtually everything in an 800-yard radius. Another Liberty ship, the SS Quinault Victory, was tied up on the other side of the pier; the explosion tore it to pieces and threw what remained of its stern more than 100 yards into the main channel. A huge fireball rose into the night sky and mushroomed nearly three miles across, throwing fiery debris as high as 12,000 feet. The 320 men who were aboard the Bryan or working on the pier beside it were instantly killed. Another 390 in the vicinity were injured.

As the stunned survivors began the grim work of collecting hundreds of mangled corpses from the wreckage (only 51 could be positively identified), the navy launched an investigation into the disaster. Captain W. S. Parsons, the first official investigator on the scene, arrived three days after the explosion. His preliminary report, written four days later, emphasized that his aim was not to determine the cause of the explosion, but to gather data on the damage it had wreaked. Parson estimated that, at the moment of detonation, the Bryan had 1,552 tons of high explosives stowed in its several holds, and another 200 tons waiting to be loaded on the dock. All but five of the victims, Parsons noted, “were right on top of the explosion.”

Survivors of the disaster immediately began to exhibit signs of emotional trauma—not only from the explosion but also from the work of recovering bodies torn apart in the blast. The officers in charge of the stevedores, all of whom were white, were granted a month’s leave to recover and recuperate; their black subordinates were kept in quarters and not allowed time away. When the question of the lingering effects on the surviving sailors was raised later, James Forrestal, the secretary of the navy, advocated putting them back to work loading ammunition as soon as possible; this, he said, was “the preferred method of preventing them from building up mental and emotional barriers which, if allowed to accumulate, become increasingly difficult to overcome.” But the Port Chicago pier facilities had been so badly damaged that work there could not resume for several weeks.

On August 8, 1944, the USS Sangay tied up at Pier 34 East at the Mare Island Ammunition Depot, across from Port Chicago. As the ammunition carrier prepared to take on cargo, the black stevedores were notified that they were to resume ammunition-handling duties in the morning. The first indication that things would not proceed as usual came when the officer in charge of one of the loading divisions informed the commander of the Vallejo Naval Barracks that most of his men were refusing, out of fear, to report to work as ordered. A chaplain offered to accompany the men to the ammunition depot, but they still refused.

Commander Joseph Tobin, the senior officer on hand, told the sailors individually that their continued refusal to obey orders would necessitate disciplinary action. Meanwhile, men in other labor divisions were also refusing to work, though some sailors said they would readily obey any order except one that involved handling ammunition. As the day went on, 258 men from three separate labor divisions declared their intention not to engage in any form of the work that had just cost 320 men their lives.

The sailors who refused to report for work were separated from their units and placed in a group. The next morning Admiral Carleton H. Wright addressed the men. He spoke of the critical need for ammunition to reach units then fighting on Saipan, appealed to their sense of duty, and told them plainly that their refusal to return to their primary duty of loading munitions amounted to an act of mutiny. Mutiny in time of war, he warned, was a crime punishable by death.

Many of the black sailors were taken aback by Wright’s warning. Mutiny, most of them had assumed, only applied in cases where a crew attempted to seize control of a vessel; they had no such intention. When the order to report for ammunition loading was repeated, 208 men reluctantly fell in, but 50 others still refused. They were immediately confined in the brig at Camp Shoemaker. Initial interviews by a navy legal officer showed that not a single one of the enlisted men knew the official definition of mutiny, which, according to Section 46 of the Naval Courts and Boards, is “the unlawful opposition or resistance to or defiance of superior military authority, with deliberate purpose to usurp, subvert, or override such authority.” The navy then began the process that would result in the largest court-martial for mutiny in its history.

THE COURT-MARTIAL CONVENED ON SEPTEMBER 14, 1944. THE DEFENDANTS WERE DIVIDED INTO FIVE GROUPS of 10 each, with one attorney for each group. Lieutenant Commander James F. Coakley led the government’s prosecution.

The defense argued that because the accused sailors had acted only out of fear, and not from any “deliberate purpose to usurp, subvert, or override superior military authority,” the legal standard required to prove mutiny had not been established. Coakley countered that all that was necessary to prove that a mutiny occurred was to show that the men in question refused to “perform military service” after they were given the order and then warned of the consequences of disobedience. He went on to assert that what occurred at Port Chicago was “an extraordinary case of conspiracy…an extraordinary case of mutiny.”

The seven officers who made up the court did not require much convincing. On October 24, after deliberating for less than an hour and a half, they found all 50 defendants guilty. Each was sentenced to 15 years in prison and dishonorable discharge. Three weeks later Wright reduced the sentences of 40 of the sailors to prison terms ranging from eight to 12 years. (The 206 men who had initially disobeyed the order to work but relented after being threatened with the charge of mutiny had all been tried on charges of refusing to obey a lawful order and received lesser sentences.)

Just six days after the court-martial adjourned, a navy court of inquiry laid bare some troubling facts. First, it pointed to “a general failure to foresee and prepare for the tremendous increase in explosives shipments” as the critical need for steady ammunition resupply to the Pacific Theater grew after 1943. Safety, survivors of the Port Chicago disaster said, always took a backseat to speed.

The court of inquiry also found “a failure to provide an adequate number of competent petty officers or even personnel of petty officer caliber.” In addition to depriving the stevedores of capable supervision at the first-line level, the lack of African-American petty officers meant that the sailors in the racially segregated labor units had no authority figures to advocate on their behalf. Port Chicago was crewed by junior officers (all of them white) who had very little experience in directly supervising enlisted men and no training in the handling and loading of munitions. Inadequate training at all levels, the court said, had dogged operations at the port almost from the beginning of the war.

Last, the board faulted the command climate at Port Chicago for failing to provide facilities that could have boosted the morale of the enlisted men as they carried out their dangerous, exhausting work. Much of that, of course, was attributable to the navy’s practice of racial segregation.

At the same time, however, the court of inquiry argued that the morale problems were not a consequence of poor training or treatment. The enlisted men, it said, were “unreliable, emotional, lacked capacity to understand or remember orders or instructions, were particularly susceptible to mass psychology and moods, lacked mechanical aptitude, were suspicious of strange officers, disliked receiving orders of any kind, particularly from white officers or petty officers, and were inclined to look for and make an issue of discrimination.” These characterizations were completely unfair. The fact that the stevedore units were exclusively black, without black officers or NCOs, created an environment of outright discrimination and racial tension. Nonetheless, the navy insisted that the black ordnance units “were administered and trained in the same manner as all other enlisted men in the navy.” In fact they were not, as critics of the racial segregation policy quickly pointed out.

Perhaps in an effort to stave off criticism for how it dealt with the accused mutineers, the navy had opened the court-martial proceedings to the public and the press. The NAACP sent Thurgood Marshall, a young lawyer who would one day sit on the U.S. Supreme Court, to California to observe the trials. Marshall found the court-martial and its verdicts to inherently unfair. In an appeal he drafted for the judge advocate general of the navy, Marshall noted that both prosecution and defense had used the same sources of legal authority to argue their respective positions on the mutiny question, and he underscored the obvious flaw in the charge—“there is no set rule as to what is mutiny.” Furthermore, Marshall argued, it was outrageous that the court had deliberated for so short a time before convicting 50 men and consigning them to prison and dishonorable discharge.

As the convictions were being criticized across the country, the navy began to reconsider both its ammunition-­handling protocols and its racial segregation practices. Marshall had argued in his appeal that “the accused were made scapegoats in a situation brought about by a combination of circumstances.” Though his appeal was unsuccessful, six months later the navy ordered the sentences of the Port Chicago 50 reduced by one year. In January 1946, 47 of the 50 men were released and paroled to active service at sea. Those who incurred no further disciplinary actions were finally discharged from the navy “under honorable conditions.”

THE CONTROVERSY OVER THE PORT CHICAGO COURT-MARTIAL CONTINUED TO RESONATE in legal and political forums for the next 60 years. In the 1990s journalists and historians began describing the incident at Port Chicago as a “work stoppage” or “strike,” completely overlooking the fact that such distinctions do not exist in the military. The more salient question was whether the sailors’ actions truly fit the legal definition of mutiny.

The sailors themselves always insisted that mutiny was never their intent, and that their genuine safety concerns and mitigating circumstances were never taken into account. Efforts to overturn the convictions were unsuccessful. While the navy maintained that no racial injustice marked the court-martial and guilty verdicts, it finally admitted that the sailors had suffered from racial discrimination during their service—a provocation that clearly influenced their actions.

In 1999 President Bill Clinton pardoned Freddie Meeks, one of two known survivors of the Port Chicago 50. (The other known survivor was also offered a pardon but turned it down.) Most of the former sailors, in fact, had never even sought presidential pardons. Pardons were for the guilty, and to the very end they insisted they were innocent of the crime for which they had been imprisoned. They had refused to obey a specific order that they believed put them in unreasonable physical jeopardy. That fact made them liable to a lesser charge, but they were not mutineers. MHQ

John A. Haymond is the author of The Infamous Dakota War Trials of 1862: Revenge, Military Law, and the Judgment of History (McFarland & Company, 2016).

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This article appears in the Winter 2019 issue (Vol. 31, No. 2) of MHQ—The Quarterly Journal of Military History with the headline: Mutineers or Scapegoats?