War, Morality, and the Military Profession

By Malham M. Wakin | Go to book overview

adopted, which were carried into the 1956 army manual. Under these new provisions, the taking of hostages is entirely forbidden, and the permissible scope of reprisals is much more restricted than it was under the 1940 manual.

The trend of the laws of war since the Second World War is in line with Francis Lieber's judgment, expressed in the 1863 rules, that: "Unjust or inconsiderate retaliation removes the belligerents farther and farther from the mitigating rules of regular warfare, and by rapid steps leads them farther to the internecine wars of savages."


Notes
1.
Axtell's case, 84 Eng. Rep. 1060 ( 1660).
2.
Marshall's statement was made in Little v. Bareme, 2 Cranch 170, 179 ( 1804). For parallel decisions, see those of Justice Bushrod Washington in United States v. Bright, Fed. Cas. No. 14647 (C.C.D.Pa. 1809) and United States v. Jones, Fed. Cas.No. 15494 (C.C.D.Pa. 1813).
3.
United States v. Bevans, Fed. Cas. No. 14589 (C.C.C.Mass. 1816). The case was tried in the Federal court on the jurisdictional basis that the crime occurred on the high seas. The Supreme Court reversed the conviction on the ground that Massachusetts Bay was not part of the high seas, and therefore the Federal courts had no jurisdiction. United States v. Bevans, 3 Wheat. 336 ( 1818).
4.
Mitchell v. Harmony, 13 How. 115, 137 ( 1851).
5.
Story's observation is in Martin v. Mott, 12 Wheat. 19, 30 ( 1827), and Curtis' in Despan v. Olney, Fed. Cas. No. 3822 (C.C.D.R.I. 1852).
6.
The proceedings of the military commission in the Wirz case were published in House Executive Documents, Vol. 8, No. 23, Serial No. 1381, 40th Cong. 2d Sess. ( 1868). There is a vivid contemporaneous account of Andersonville and Libby prisons in A. C. Roach, The Prisoner of War and How Treated ( Indianapolis, 1865). The play based on the trial, by Saul Levitt, is published by Dramatists Play Service, Inc. Those interested in the subject may also want to read McKinley Kantor's novel Andersonville, published in 1955.
7.
In the play based on the trial, Wirz's last line is, "I did not have that feeling of strength to do that. I could not disobey." There is an interesting likeness between this language and the statement of the German Supreme Court in the Llandovery Castle case (convicting two naval lieutenants who had acted under superior orders) that: "A refusal to obey the commander of a submarine would have been something so unusual, that it is humanly possible to understand that the accused could not bring themselves to disobey."
8.
The British provision is in Manual of Military Law ( 1914), p. 302, par. 366; the American is in Rules of Land Warfare ( 1917), p. 130, par. 366.
9.
Deutsche Allgemeine Zeitung, 28 May 1944.

-389-

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