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War Crimes

The historical foundation for our military law and our criminal justice system is the 1774 British Articles of War. In fact, our first codes, the American Articles of War and Articles for the Government of the Navy, predated the Constitution and the Declaration of Independence. Through the First World War, the codes and the system went through some amendments and revisions but were substantially unchanged for more than 100 years.

The first U.S. Articles of War, which comprised a comprehensive set of military laws concerning personal conduct and loyalty, were modeled on recently written Massachussetts articles. They were authorized by the Continental Congress on June 30, 1775, a few months after the Continental Army was officially established. The 69 Articles defined most offenses in terms of standards of personal conduct, principally on the part of officers. Penalties for petty offenses, especially by commissioned officers, consisted mostly of cash fines. More serious crimes such as mutiny, sedition, or disobedience of orders, were punishable at the will of a court martial. The severest penalty for a commissioned officer in most cases was to be "cashiered," or expelled from the army. Corporal punishment - of enlisted men only - was limited to 39 lashes. Only three crimes were punishable by death.

Fifteen months later, on September 20, 1776, Congress repealed the 1775 code and enacted a new and expanded one consisting of 101 Articles in 18 Sections, which brought the code more in line with contemporary British law. A total of 16 crimes, including inciting or participating in mutiny or sedition, disobeying an officer's command, or falling asleep on sentry duty, were punishable by death, "or such other punishment as shall be inflicted by the sentence of a court martial."

Courts martial are ad hoc courts convened for the trial and punishment of violations of laws enacted by Congress for the government of its military forces. They are responsible to the Executive Branch of the Government under Article 1, Section 8, of the Constitution, which authorizes Congress "to make Rules for the Government and Regulation of the land and naval forces." Non-commissioned officers and privates were tried for minor offenses in a regimental or garrison courts martial. More serious offenses including those that carried a death sentence were tried in general courts martial, which required a jury of 13 commissioned officers. Even civilians who served with or accompanied a military unit in the field were subject to military laws.

Desertion is a very common charge found in Civil War court-martial case files. Many of these cases are brief and provide little testimony. There are examples, however, of cases where the finding of the court resulted in a flurry of activity, including new information being brought to light after the trial ended. A good example is the case of 2d Lt. Charles Conzet, Company B, 123d Illinois Infantry Regiment. Lieutenant Conzet deserted on January 9, 1863, was later captured in Illinois, and returned to his unit on February 21, 1863. Conzet was tried and convicted of desertion and sentenced "to be stripped of his badges of office, and shot until he is dead, with musketry." Both the commanders of the division and the Department of the Cumberland approved the sentence and forwarded it to the President of the United States for his approval.

Cowardice, desertion, theft, sleeping on guard duty, treating with the enemy, spying, murder, and bounty jumping brought the hardest punishments. Execution by firing squad or hanging could be applied to all of these, but frequently cowards, thieves, and some deserters were branded (either on the face or the hip) and drummed out of camp in disgrace. In the artillery or cavalry, being tied for hours spread-eagled on a gun carriage wheel was common, and sometimes, when the culprit was hung horizontally, crippling. In both the army and navy, flogging had been outlawed several years before the war.

A large number of citizen-soldiers served in the military during World War I. Even though some people had bad experiences at the hands of the military justice system as it existed at that time, there was not an overwhelming demand to make big changes because it was the "war to end all wars." World War I was viewed as an aberration and the United States quickly reverted to a small standing army after the war ended. In World War II, however, the United States had over sixteen million men and women serving in the armed forces. Incredibly, there were about two million courts-martial during those war years. There were more than sixty general courts-martial convictions for every day that the war was fought: a total of about eighty thousand felony court convictions during the war. The soldiers and sailors of World War II, like those of World War I, were regular citizens who volunteered or were drafted. Many of these citizens also had some very unpleasant experiences with the military justice system. At that time, the military justice system look quite different than it does today and did not offer accused the protections afforded by the civilian courts system. It was a system that was foreign to many American citizens and they disapproved of the way criminal law was being applied in the military. Following the war, many organizations studied and made proposals to improve the military criminal legal system, to include: the American Bar Association, the American Legion, the Judge Advocate Association, and the New York Bar Association. Congressional hearings on the military justice system were also started.

Following the Kaiser's invasion of Belgium, Britain declared war on Germany and men flocked to recruitment offices, eager to serve their country. But they faced horrific trench warfare and criminal charges if they deserted. The tragic reality of trench warfare during the First World War was starkly different from the honor and prestige volunteers had imagined. Death, disease, and vermin were commonplace. Aspirations of heroism were soon replaced with an urgent desire simply to remain alive. Those who lied about their juvenile age in order to serve at the front must have spent miserable hours pondering their folly.

Each battle seemed bloodier than the last - Mons, Ypres, Uerdun, the Somme, Amiens. Suspicions grew that commanders were using their soldiers as cannon fodder by callous commanders. Men suffered shock and shell-shock, conditions that deserved medical assistance, but post-traumatic stress syndrome was not yet recognized.

A refusal to fight was inevitably construed as cowardice. Sometimes it entailed desertion or striking a superior officer. The prescribed punishment was always death. In the four years of the First World War, 312 men are known to have been shot following a court-martial on such charges, although almost ten times that number had death sentences commuted to life. Afterward their families suffered the stigma of their supposed cowardice, often accompanied by poverty, with army pay and pension halted.

Official papers were suppressed for 75 years so the issue went largely unnoticed. Now it is being aired, the subject causes mixed response. Some observers are filled with pity for these conscripted men; others feel that deserters betrayed their colleagues.

There was controversy when it was suggested that the name of Thomas Highgate, the first British man to be executed for desertion, should be added to the village war memorial in Shoreham, Kent. Highgate, of the West Kent Regiment, disappeared after two weeks of action at the Battle of Mons. He was discovered in civilian clothes hiding in a barn. He was shot at dawn on September 6, 1914. To resolve the issue the local vicar Barry Simmons organized a poll. The result was 170 in favor of honoring Highgate's name and 46 against.

On January 18, 1917 three soldiers were bound, blindfolded, and tied to stakes on French farmland. Each had a white envelope pinned above his heart. A dozen soldiers fired their rifles at each. One soldier wrote, "The officer in charge holds his stick aloft and as it falls 36 bullets usher the souls of three of Kitchener's men to the great unknown." Privately, he viewed the event as "a triple murder."

One of the dead men was Willy Stones, 25, of the 35th Durham Light Infantry, who had seen his commanding officer shot by Germans infiltrating the trenches. According to his testimony, he rammed his rifle across the trench as an obstacle to the fast-approaching Germans and ran to raise the alarm. When he returned without his firearm he was judged to have "shamefully" cast away his weapon in the presence of the enemy.

Held on Christmas Eve 1916, his court martial lasted just 20 minutes. Brigadier General Henry O'Donnell recorded, "I am reluctantly compelled to recommend that the sentence be carried out for the purpose of example and to show that cowardice in the presence of the enemy will not be tolerated. "Yet he admitted to having doubts about the evidence. French troops showed a more unified reluctance to fight. The ruthless commanders ordered that one man in every ten be tried and shot in order to discourage similar insurrection.

Jean Kellaway. . The Lyons Press, Guilford, Connecticut. 2003.

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