History’s Two Worst War Criminals

by Tony D'Amato

Many of our younger international scholars are rightfully insisting that nations own up to their past atrocities. They are pressing Japan to fully disclose the enslavement of Korean “comfort women” who were forced to accompany the rampaging Japanese armies in China during the second world war. The scholars are demanding that Serbia, Croatia, and Bosnia give a full accounting of the war crimes they committed in former Yugoslavia in the last decade of the twentieth century. They are calling upon Turkey for full accountability of the Armenian massacres of 1915.

But our credibility becomes eroded if we conceal our own past. We should be calling upon our own government to acknowledge the war crimes that have sullied American history. To some extent lawyers are doing this with respect to our pre-Union war crimes against Native Americans. Yet nothing can be as dramatic as the personification of war criminality. I suggest we should begin calling specific attention to the two persons whom I will nominate below as the worst war criminals in human history. I omit Stalin and Hitler because the genocides they unleashed should not be labeled as war crimes even though the number of victims was in the millions. (Stalin’s genocide took place in the 1930s, and Hitler’s holocaust actually ran counter to the German war effort.)

Here are my two nominees about whom too much attention cannot possibly be paid:

GENERAL WILLIAM TECUMSEH SHERMAN. During the Civil War, General Grant insisted that the defeat of Confederate armies was the first and foremost objective of Union strategy. Disobeying this policy, General Sherman set forth on a march to Savannah and the sea on November 15, 1864. He led his Union troops away from every Confederate army camp or stronghold. Instead, his army proceeded through the soft belly of the South, burning and destroying the civilians, their homes, their property, their farms, their food, their entire countryside. They murdered the children and the elderly, raped the women and then shot them, and stole every valuable they could get their hands on. Today General Sherman is featured in high-school history texts for saying “War is hell.” But nevertheless there is some controversy about him. There are parents who object to the use of the word “hell” in textbooks that their teen-age children are required to read.

GENERAL CURTIS LE MAY. In air campaigns against Japan in 1944 and 1945, General Curtis LeMay of the U.S. Army Air Corps also defied the established wartime policy of the United States. That policy called for precision daylight bombing of military targets. Instead, LeMay retrofitted his planes with napalm cannisters (jellied gasoline), and dropped them at night over the northern suburbs of Tokyo, which were then the most densely populated areas in the world. Of course there were no men of fighting age present; there were only women, children, and the elderly packed in their wooden homes. On one evening, March 9, 1945, LeMay’s pilots were particuarly lucky: there was a brisk wind that carried the flaming napalm across wide distances. The heat that was generated was so great that the few people who could get out of their homes in time and jump into the nearest river or lake were boiled to death. General LeMay had successfully presided over the murder of 100,000 innocent people. He also had a quip to give to posterity: “There are no innocent civilians, so it doesn’t bother me so much to be killing innocent bystanders.”

When I participated on a war crimes panel at West Point some years ago, I brought up LeMay’s name as an arch war criminal. Despite my saying this in a room packed with cadets and high brass, no forcible action was taken against me. Perhaps the reason for the restraint was that the West Pointers were prepared for remarks such as mine. All eyes turned to one of the observers in the first row, an Army officer who was also a professor at West point. After standing up and establishing his credentials as a major student of aerial warfare, he sharply disputed my assertion that LeMay dropped bombs on non-military targets. He said that the women in the targeted area were active participants in furthering the Japanese war effort: they were darning socks and mending army uniforms.

http://opiniojuris.org/2005/08/09/history%e2%80%99s-two-worst-war-criminals/

22 Responses

  1. Fascinating. I’d never seen that quote from Le May which so closely parallels much of the ‘justification’ which comes out of the mouths of many terrorists today.

    As an aside, I’d suggest that claiming that Hitler’s holocaust shouldn’t be considered a war crime purely on the grounds that it hindered his war effort isn’t very helpful. Many crimes committed during war hinder, rather than help, war efforts. A current example could be the Abu Ghraib (did I spell that right?) abuse scandals. One could makea good case to say that it was both a war crime and is directly hindering America’s war aims in Iraq, and the wider war on terror.

    If you want to claim Hitler’s holocaust shouldn’t be categorised as a war crime, I think you need to find another argument.

  2. Comment on LeMay

    The other day I watched the documentary ‘The Fog of War: Eleven Lessons from the Life of Robert S. McNamara’.

    In this award winning documentary by Errol Morris (Oscar for Best Documentary), McNamara mentions Army Air Corps General Curtis LeMay a couple of times. Apparently, during WWII McNamara served under LeMay and he was involved “as part of a mechanism” in the preparation of the air raid on Tokyo (McNamara’s studies laid to the decision to have the B29 fly at 5000 feet and not 23000. This enhanced the efficiency of the operations.)

    Furthermore, McNamara says that after Tokyo 66 other cities followed; they were also bombed and set afire. Of these 67 cities 50-90 % of the population was killed, according to McNamara.

    In de documentary McNamara says that LeMay, after the bombings said: “if we had lost the war, we would have been charged like war criminals” (or something like that – I don’t have the exact wording here).

    And subsequently, LeMay’s men dropped THE bombs on Hiroshima and Nagasaki. The rest is history.

  3. Lawyers second-guessing the military is a peculiarly American theme. We would all be well-advised to read more John Yoo, the better to understand the proper role of lawyers and courts in interfering with military campaigns.

    Your account of General Sherman’s ‘war crimes’ is, with respect, overly-simplistic.

    You forget that at the time of General Sherman’s burning of Southern cities, Jefferson Davis was toying with the idea of not surrendering and encouraging a form of guerilla warfare against the occupying Union forces. That he ultimately decided against this, partly on the advice of General Lee, is to both men’s credits. I mention this to put General Sherman’s acts in context:

    Sherman emptied Atlanta of its civilians and burned it to the ground. This was because Atlanta was an important support location for the Confederate army and had to be controlled or destroyed. Occupying Atlanta would have tied down tens of thousands of Union troops, especially given Davis’ strategy. Destroying Atlanta allowed Sherman to move half of his troops to a defensive position that was much easier to supply and use the other half for offensive operations in his march to the sea. Sherman had a highly mobile offensive force that he used in his own version of shock and awe, but he did not tie it down trying to occupy the area he marched over.

    Now he made a decision, on-the-ground, which he believed helped the Union cause. It may have been ostensibly targetted at civilians, but it nonetheless served the war’s purpose and was directly linked to wartime strategy.

    Lastly, it is inappropriate to call what he did a ‘war crime,’ doubly so because you are an international law professor. Surely an intertemporal doctrine would make such a charge as wrongheaded as saying the US obtained land from the Native Americans illegally through conquest.

  4. Professor D’Amato should consider sticking to law and leave history to the professionals, because it’s clear he’s either (a) grinding a major axe, despite his credentials, or (b) woefully ignorant of other war crimes in history.

    First, what range of “history” are you examining in order to conclude these two men are the “worst war criminals in human history.” If you’re studying the entire sweep of human history you’re selection of LeMay and Sherman are utterly and profoundly absurd.

    Secondly, your argument that LeMay defied U.S. policy does not continue to denote that he SET policy subsequently in firebombing Japanese cities. In addition, you clearly have not spoken to enough of our military men from the Pacific theatre of WWII, despite your “time at West Point,” to garner an appreciation for the pervasive views towards the hated “Japs” as feared fighters, and by extension all things Japanese that produced this military culture.

    What I am not arguing is that all the actions taken by Sherman and LeMay were proper, but to decree they’re “history’s two worst war criminals” judging their actions in retrospect today from your armchair easiness removed from circumstances at the time and through politically correct cultural glasses reveal why such positions are losing favor in the general populace.
    There are easily dozens of others who come to mind when one is scanning the sweep of human history for a list of “worst war criminals” and none of them are Americans.

  5. Thanks to Andy and Atilla for signing your posts. It’s of course true that the holocaust was a crime committed during war, but that doesn’t make it a war crime. It’s worse than a war crime; it’s genocide. But I think we should make an effort to keep our labels accurate.

    Atilla rightly ties Robert McNamara to Curtis LeMay. McNamara’s faux mea culpa was a truly disgusting performance. He confesses that he was wrong, oh so wrong, in his strategic planning for the Vietnam War, despite his credentials as a Whiz Kid for Ford Motor Company.

    What’s wrong with his self-portrait? He copied LeMay’s napalm bombing of Japanese civilians and exported it to the civilians of Vietnam. Tear gas and napalm flushed “the enemy” out of their huts, except for the infirm and children who died of asphyxiation. Yes indeed, we will win the hearts and minds of the people by burning them to death. Makes one wonder whether LeMay and McNamara were brought up on “Tales of the Inquisition.”

  6. “Makes one wonder whether LeMay and McNamara were brought up on “Tales of the Inquisition.”

    This is turn makes one wonder whether Professor D’Amato would agree that wars are fought to be won.
    War is hell for good reason, and I’d argue that throttling war-making to the extent it’s merely one step above aggressive policing is surely bound to make it more common — obviously not the intended goal of the international community.
    A quick look at any area of the world where the rule of law and civil society is absent reveals, more often than not, a low-intensity conflict close at hand. My point? Simply that though war is never to be embraced, and signifies a failure of humanity, when it is entered it should be fierce, overwhelming, and decisive — and thereby hopefully short.
    By the end of WWII Germany and Japan were utterly broken in spirit, in industry and in infrastructure, (as was the south in the aftermath of the Civil war), and growing military scholarship argues today this total defeat was a significant factor in both countries rebuilding into the democratic and peaceful industrial powerhouses they now are. In comparison, countries where low-intensity civil wars or conflicts have raged for decades (the Congo immediately comes to mind), would seem fated to a never ending limbo between total war and a viable stable peace.

    I’d be interested in Professor D’Amato’s view toward solving such intractable conflicts in the absence of decisive action by one side or the other, because clearly the U.N. isn’t up to the task.

  7. Rich S. has raised some very deep issues. I am reminded of a sentence by Quincy Wright in one of his books about war written in the mid-twentieth century, a sentence that has become for me a living postulate. He said that the purpose of war is to win the subsequent peace.

    I think Rich S. would agree. We have to look at war crimes as an attempt by international law to balance the goal of bringing the war to a quick conclusion against the goal of doing it as humanely as possible. Both goals are designed to save as many innocent lives as possible.

    But I too have been troubled by the effectiveness of the unconditional surrender policy of the United States against the Axis powers, and our relentless saturation bombing of Germany and our napalm bombing (and atomic bombing) of Japan. Somehow these brutal acts did bring about a revulsion against war on the part of the German and Japanese people. But does it follow, as Rich S. suggests, that it was the “total defeat” inflicted by the United States upon Japan and Germany that caused their post-war turn toward disarmament and peace?

    Consider this. Suppose Japan had developed the atomic bomb first, and wiped out some major American cities. Suppose we surrendered, in panic and fear. Would that mean that today we would be peace-loving advocates of disarmament?

    If the clear answer is No, then wherein lies the difference? The difference lies, I believe, in the fact that the people of Japan and Germany ex post have come to the realization that their governments were the aggressors, that the United States did not want war. This makes all the difference in the world. If in my hypothetical example we had lost the war, we wouldn’t have felt that we were wrong to begin with. But the Japanese and German citizens do feel this way, for the most part.

    Why do they feel this way? Because what their leaders did was morally and legally wrong, period. Let us eschew relativism. As critical as I can be of the United States, there is no doubt in my mind that the fanatical militarists who had taken over the Japanese government prior to World War II and the racist Nazis who took over the government of Germany in 1933, were the ones who perpetrated evil upon their neighbors. Fortunately, the people of the world are not moral relativists. The stability that followed World War II in Japan and Germany, and in many other countries, was a direct result of the perception that the actions of the Allies were, for the most part, justified. (Of course, this very blog is an attempt on my part to stop short of saying that everything we did was justified. Just as the majority of the things we did were justified, the minority of things we did were unbelievably cruel and immoral.)

  8. “the worst war criminals in human history”

    That’s absolutely absurd. In weighing the gravity of a purported war crime it seems to me that one must consider the cost in human lives, the intent behind it and the cause in aid of which it occurred.

    On none of these counts do Sherman and Le May qualify as among history’s worst.

    Sherman’s march to the sea was a worse crime than, for example, the Rape of Nanking and the Japanese subjugation of China? Please! The latter included far higher casualties and atrocities (15 million Chinese dead and horrors that far surpassed anything dreamed of by the Union army) and was committed in furtherance of a war of aggression.

    Likewise, any “crimes” imputed to Le May pale in comparison to those committed by the Japanese in China, the Philippines, etc. Nor do they compare to even non-Holocaust conduct of Nazis (such as Operation Barbarossa and the Lebensraum philosophy)

    A sober reflection on the wrongs of one’s own country is healthy. Over-the-top self flagillation is not. Your post qaulifies as the latter.

  9. Conrad, I suggest that you study up on the difference between a war and a war crime.

  10. Professor D’amato:

    I’m sure your post was intended to be provocative, but that doesn’t excuse the glib manner in which you dismiss German and Soviet atrocities and ignore, among other things, the context of the air campaigns in World War II.

    Elements of the holocaust were of course war crimes. Consider, for example, the German death squads active in Russia, along with a generally brutal occupation, as responsble for the deliberate murder of hundreds of thousands of Soviet citizens (and not only Jews). Whether the intent was genocidal, the conduct violated the laws of war (as it was then understoond pre-Geneva). So, too, the use of Soviet POWs as slave labor (with the resultant high-fatality rate).

    While Stalin’s greatest atrocities were directed toward the people of the Soviet Union, he likewise directed or condoned the murder and long-term imprisonment of German POWs as well as deliberate brutality against the German people (consider the mass-rape that took place after the fall of Berlin).

    When we look back, with the benefit of hindsight, on the air campaigns against Japan and Germany, we fail to consider the context of those campaigns. The primary intent, as I understand it, was to undermine both the capacity and will of the German and Japanese nations to wage war. While saturation bombing to break an enemy’s will may seem morally questionable (particularly in the modern era of controlled and limited war), at the time it was considered a proper military purpose, and I think Allied bombing campaigns were not done solely for this purpose – as mentioned, such campaigns were directed against the enemy industrial base fueling their war efforts.

    Contrast this with the German “blitz” of 1940-1941 and later rocket campaigns against London, which were intended solely to terrorize the British population.

    If you want to object to Sherman’s march through Georgia or LeMay’s air campaigns (or Hiroshima and Nagasaki) on the basis of “proportionality” – then, fine, make the argument. But I think you seriously undercut your arguments by assuming an improper or immoral purpose, and, to reinforce this argument, completely discount the context in which these events occurred.

  11. To BRAD CLARK: If you take into account enough of the context, and you take into account enough of the motivations, then you’ll never have a war crime. The same is true domestically: if we take into account the accused person’s horrendous childhood, the teasing he underwent at school, his low IQ, the fact that he couldn’t get a date, etc., then we might excuse what he did. As the French say, “to know all is to forgive all.” Of course, the French don’t know what they’re saying.

    On your point about the London blitz, of course it was a deliberate war crime. Churchill’s response was to send bomber mission after bomber mission to bombard Berlin and give the Hun a taste of his own medicine. Frankly, my admiration for Winston Churchill might go up several points, say from 0 to 3, if he had done the civilized thing and refrained from committing a retaliatory war crime. The people of Berlin had no say over what Hitler was doing; why punish them?

    We had a chance during World War II to take the high road. Unfortunately, as the war went on, and as our chances of winning improved, we became increasingly savage and bestial. I think we have to recognize that our country is capable of sinking so low (and that international lawyers in other countries have to recognize that their countries, too, are capable of sinking so low).

  12. At that time there hadn’t been much articulation about what connects a criminal act to an armed conflict sufficiently enough that the act can be considered a war crime.

    Still, even under the jurisprudence of the ICTY on this point, it’s a stretch to relegate an act to being a crime against humanity simply because it is objectively counter-productive to the war effort. A crime doesn’t have to be smart to be a war crime. Also, the Holocaust scarcely fell outside of the war _aim_, given how bound up it was with “progress” for the “Aryan” race.

    Ewen Allison

  13. My apologies to blogger and bloggees (bloggoids?) for posting something incomplete. I’d meant to head my post with a relevant quote of the Hague Regs. Full post below.

    Ewen Allison

    —————————-

    From the Hague Regulations on land warfare:

    Art. 46. Family honor and rights, the lives of persons, and private property as well as religious convictions, must be respected.

    . . .
    Ar. 50. No general penalty, pecuniary or otherwise, shall be inflicted upon the population on account of the acts of individuals for which they cannot be regarded as jointly and severally responsible.

    —————————–

    At that time there hadn’t been much articulation about what connects a criminal act to an armed conflict sufficiently enough that the act can be considered a war crime.

    Still, even under the jurisprudence of the ICTY on this point, it’s a stretch to relegate an act to being a crime against humanity simply because it is objectively counter-productive to the war effort. A crime doesn’t have to be smart to be a war crime. Also, the Holocaust scarcely fell outside of the war _aim_, given how bound up it was with “progress” for the “Aryan race.”

  14. Talking about nations admitting their past atrocities, it’s surprising that scholars are not demanding that Croatia and Bosnian Muslims face the genocide Ustashes committed against Serbs, Jews, and Roma in WWII.

    One of the reasons for the latest wars in the Balkans was the fact that Croatia and Bosnian Muslims never went through a denazification process.

  15. D’Amato:

    Don’t you presume to patronize me in a feeble attempt to avoid the facts that render your assertion demonstrably untrue. I’ve got well over a decades experience in the practice of international law.

    The Rape of Nanking was not a war crime? The Japanese intentional slaughter, rape and enslavement of Chinese civilians and prisoners of war during the subjugation of China was not a war crime? The Nazi enslavement of the Slavs and appropriation of Eastern lands was not a war crime? Waging a war of aggression is not itself a war crime?

    If the latter is true, then apologies are owed to the senior Nazi and Imperial Japanese officials who were executed for doing just that.

    I repeat, your identification of Sherman and Le May as the worst war criminals in history is patently absurd. You have offered nothing approaching either a case for their inclusion or a defense for your decision to so identify them.

    Given the number of opportunties you have been provided to do so and the feebleness of your response, I can only conclude that you are unable to justify your absurd assertions and lack to grace to withdraw them.

  16. Mr. Conrad, even if you are dead set against studying that of which you so confidently speak, a little logical thinking might possibly not be too much of a strain. You assert that waging a war of aggression is itself a war crime. If that were true, there would be no war crimes. The entire rationale of a war crime is a limitation on the conduct of war. It limits both sides once a war has started, irrespective of who started it.

    If you were ten years old, I’d enjoy explaining this to you. Maybe you are ten years old, having wasted your entire lifetime practicing international law.

    Patronizingly yours.

  17. Two quotes from correspondence about the Catholic priest who was removed from his parish for going to Japan to apologise for Horoshima and Nagasaki bombings:

    – the Second Vatican Council clearly stated in Gaudium et Spes, “Any act of war aimed indiscriminately at the destruction of entire cities or of extensive areas along with their population is a crime against God and man himself. It merits unequivocal and unhesitating condemnation” (80).

    – Pope Paul VI referred to the bombings as “butchery of untold magnitude”

  18. Professor D’amato:

    Thank you for your thoughful response.

    I think, with war crimes, you are required to consider the action in context (the case escapes me – but I think the rule was fashioned in the trial of a German general for scortched earth tactics in Norway).

    I don’t know that one can equate military necessity with “economic necessity” or a defense of “disadvantaged upbringing” as you cite in your response. Certainly, the laws and customs of war DO account for the purpose behind military action (Rendulic rule? Remulec rule? The name continues to escape me).

    That Churchill ordered retaliatory strikes in response to the Blitz in no way undermines my point that the Blitz was intended solely to terrorize civilians. The fact that Churchill may have done something bad/immoral/etc doesn’t, in any way, mean that the Blitz he responded to was any less bad/immoral/illegal, etc.

    To recognize and consider this is not to excuse war crimes, in and of themselves (any more than affirmative defenses in criminal law excuse crimes, generally). Rather, the analysis must be case-by-case.

    Also, why are motivations not relevant? What was meant to happen – what was intended or what the known result was – are crucial inquiries in criminal law (mens rea). Why not with war crimes?

  19. BRAD CLARK asks: “Why are motivations not relevant?”

    Consider two cases, (a) genocide, and (b) war crimes.

    To be found guilty of genocide, specific intent must be proved by the prosecutor. That is, the intent to destroy a group in whole or in part because of its racial, ethnic, religious, or national-origin identity.

    To be found guilty of a war crime, the only intent the prosecutor must prove is the defendant’s intent to commit the act that the defendant is accused of committing.

    Other than that, motivations are irrelevant both in domestic law and international law. Why are they irrelevant? Because we don’t want to draw a distinction between good motivations and bad motivations. (“Yes I killed him, but I was just trying to rid the world of a predatory beast.”)

  20. But certainly motives are relevant, even if they aren’t an element of an offense. Evidence of motive, for example, is almost always admissible in criminal trials to prove certain elements (intent or knowledge, identity) or to refute defenses (mistake).

    So, while motive may not be an element of war crimes it would certainly be relevant – an appropriate issue of proof – for both sides, particularly when the basis of the claimed offense is excessive or unnecessary use of force, as would the context in which the decision is made (“Rendulic Rule” – finally got it).

    In other words, I think distinctions can and should be made between acts that are criminal on their face (Katyn Wood, for example), and those upon which the claim of criminality is based on proportionality or the principle of discrimination (the act may, ultimately, be just as criminal, but the analysis is different).

  21. I agree that Curtis LeMay was a war criminal; he seems to have been aware of that himself. He was probably the greatest war criminal in US history.

    What I don’t agree with, however, is his nomination as one of the greatest war criminals in all of human history.

    I understand that Hitler was omitted because his genocide of Europe’s Jews was not a war crime but a different kind of crime. However, what of his other crimes against unarmed non-combatants, including but not limited to those mentioned in my article «One might think that …» (http://holocaustcontroversies.blogspot.com/2006/08/one-might-think-that.html) on the «Holocaust Controversies» blog (http://holocaustcontroversies.blogspot.com/) ?

    As described in more detail in that article, the Nazi regime was responsible for the killing by starvation, exposure, shooting or other means of up to 3.3 million Soviet prisoners of war, for the sometimes particularly brutal slaughter of about a million Soviet civilians in the course of so-called anti-partisan operations, for the miserable deaths of about a million inhabitants of Leningrad in a siege that was meant to bring about not the surrender of the city but the annihilation of its inhabitants, and for millions of civilian deaths in German-occupied Soviet territory resulting from a policy of ruthless exploitation that had been decided upon prior to the German invasion of the USSR.

    The number of victims of these crimes far exceeded LeMay’s incineration of hundreds of thousands of Japanese civilians, so if these crimes were war crimes then Hitler and others in the Nazi government or armed forces responsible for them – like General Quarter Master Eduard Wagner – were far greater war criminals than LeMay.

    Or are the above-mentioned crimes to be categorized not as war crimes but as crimes of a different nature, similar to the Nazi genocide of the Jews? Racist hatred of the sub-human Bolshevik Slavs was certainly one of the motivations underlying these crimes, which would have been unthinkable in Nazi-occupied Western Europe, so it may be argued that they belong in the category of crimes against humanity rather than that of war crimes.

    I would like to know Professor D’Amato’s opinion on this.

  22. What about the firebombing of Dresden? Was that not a war crime, and was not the British commander who was responsiblel for ordering the Dresden firebombing a war criminal? No one knows for sure, but at least 50,000 and probably closer to 75,000 people died in the firebombing of Dresden. And that precedded the firebombing of Tokyo.

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