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Historical precedents and international agreements provided scant protect to the inhabitants of an occupied territory during World War II. Although noble in design, the Hague Convention used vague language to overcome fundamental disagreements between large and small powers and implicitly sanctioned collective reprisals by way of the Martens clause. American, British, French, and German manuals of military law sanctioned the execution of hostages and punished one man or groups of people for crimes committed by others. The first two men who served as the military commander in France, Generals Alfred Streccius and Otto von Stülpnagel, did not adopt abbreviated judicial procedures established by Hitler, viewed collective reprisals and hostage executions as a last resort, and exercised a degree of restraint. Supported by statistics that pointed toward a decrease in serious resistance activity, they endured petty attacks and avoided provocative reprisals that would undermine Franco‐German cooperation.

The communal life of the regiment was intense, claustrophobic, and minutely regulated, and some soldiers rebelled against it. This chapter analyses how the military authorities defined deviant behaviour and the main forms that it took. It explores the ways in which the army's formal disciplinary structures evolved to deal with the problem of soldiers who broke the rules. It determines the extent to which soldiers believed that the disciplinary regime was legitimate and treated them fairly, and analyses how the military authorities dealt with mass mutinies.

This chapter seeks to analyze the changing meaning of ‘peace’ under an early colonial regime which was perpetually at war. ‘Peace’ in early colonial South Asia no longer meant the absence of conflict, but rather a period when problems of war assumed an urgent significance. From paying soldier’s arrears incurred during military conflicts to disciplining them in times when the Company state was not formally at war—‘peace’ was no longer the opposite of war. Rather it was the fleeting opportunity to re-tool the apparatus of colonial war-making. Conquest did not occur in a legal vacuum. This chapter analyses debates about military law and its significance for the early colonial regime’s claims to sovereign authority. Jurisdictional jockeying between competing sources of law went well beyond the need to maintain military discipline. Examining these debates opens up an unexplored world in which we can understand important questions relating to the territoriality of early colonial rule, the legal personality of the Company state and efforts to compare Britain’s garrisoning of Ireland with the organization of coercive force in South Asia.

This chapter discusses the role of rules of engagement (ROE) in the context of criminal law and the influence of criminal law on ROE, continuing on to examine the two principal roles ROE can play in the criminal law context: as an accusatory device and as an exculpatory device. Further, it explores the concept of ‘ROE crimes’ and analyses the concept of mens rea in the context of ROE and military operations, with special emphasis on the role of the defence of superior orders in (international) criminal law. The chapter concludes with a discussion of several criminal law cases centred on ROE.

This chapter explores the relationship between war, law, and space in the context of contemporary Western interventionism, in particular the war in Afghanistan, to open up new avenues of inquiry for a renewed project of critical legal geography. It asks: what spatializations of law underpin and enable multinational interventions, and which legal geographies do they produce? Analyzing intervention in terms of four different but overlapping moments—invasion, occupation, pacification, and autonomization—the chapter argues that the spatiotemporalities of law are crucial to the oscillating sovereignties and violent passages of “states that come and go.” The overarching claim is that legal geography should attend more to the international and transnational, to the ongoing rescaling of the state and the transformations of state sovereignty, and to the hybrid—and often violent—legal geographies associated with political and economic globalization.

This study has sought to contribute to the communication between the academic analysis of the legal aspects of the use of force and the realm of pragmatic application of the rules on the use of force during the conduct of military operations, presenting the case for the need, indeed necessity, for both these realms to remain connected. This chapter presents a conceptual model of rules of engagement (ROE) on the basis of the constituent chapters of the book, drawing on the introductory discussion of the classic ROE model in Chapter 1. It re-examines the influence of political, operational, and legal considerations on ROE and describes the overall function of ROE in terms of applicable law and in the context of the international law of military operations. Drawing on the underlying conclusions from this study, the main questions discussed in the Introduction will be addressed in order to answer the central question: what is the function of ROE and derivative (or similar) rules on the use of force in the context of the legal framework governing the use of force during military operations.

Civilian Law and Military Law are both concerned with sanctioning the behaviour of those that break norms or regulations, but the military during the twentieth century understood their law as primarily a means to enforce discipline and obedience. The chapter compares and contrasts the two forms of law with particular focus on the death penalty, on confrontations between the military and civilian courts, and on the assumption common to many military officers that crime in the services was the work of criminals. There is some focus on the death penalty, principally because it is the area most fully explored by historians of military justice to date.

This chapter explores the cognitive dissonance that Civil War soldiers experienced as they left their ordinary lives, suffused with customary common-law understandings of property, and entered the military, where according to the laws of war they could appropriate personal property in a variety of circumstances. Back home, that appropriation might be called “stealing.” During wartime, however, such foraging was often legitimate and necessary. That it was “legal” did not, for many soldiers, lessen their unease. Instead, they felt compelled to explain their behavior to civilian correspondents back home—and to themselves. Examining rarely used personal correspondence by these soldiers, the chapter captures the lived experience of legal pluralism among ordinary Americans who found themselves pulled between two legal orders, civilian and military, in the extraordinary circumstance of a civil war fought at home.

This chapter discusses the apologist role of courts, in which they serve as a legitimating agency for state action. The first case study shows how the Israeli High Court of Justice (HCJ) contributed to the creation and legitimization of a segregated regime in the Occupied Palestinian Territories by providing the state with the legal tools required to design and implement it. The HCJ has done this through the selective use (and misuse) of the law of military occupation. The second case study examines the jurisprudence of the Serbian War Crimes Chamber (WCC). The WCC is one of the few domestic courts in the world to prosecute its own nationals for war crimes committed in a conflict that ended just a few years before the court's creation. More generally, it deciphers the legitimating role of a national court which exercises criminal jurisdiction over former government officials.

This chapter outlines the military justice system. In doing so, the chapter explains why the military maintains a separate justice system—regulated by what is often referred to as “military law,” highlights its novel aspects, and discusses contemporary challenges. Using vignettes and historical examples the chapter begins by outlining the foundations of the system. It then moves into a discussion on the sources of authority for the Uniform Code of Military Justice and the Manual for Courts-Martial, and uses case studies to explain how the system works. The chapter also offers unique insights in practicing military justice in a deployed environment and the importance of maintaining command responsibility over the system. The chapter concludes that, despite ongoing criticism, there remains an overwhelming need for an independent military justice system.

The significant and sustained mobilisation of British men into some kind of military service outside of the regular army between 1740 and 1815 necessitated a means to establish the legitimacy of these forces in the eyes of contemporary society. Although the many Acts of Parliament that sanctioned and regulated this mobilisation provided a legal framework, they did not, and could not, facilitate the transformation from a civilian to a soldier. Moreover, almost none of these men saw active service so their primary identity as a weapon of war was never evidenced to themselves and others. This chapter explores how these auxiliary soldiers were made, through an examination of the creation of new units, the experience of these soldiers and the details of the units they joined, as well as how they were received and accepted by the Britons they were serving to protect. In this period a process of legitimisation developed, in which new military language, social status, soldier-like behaviour, and public display were combined to create a military culture.

This chapter discusses how, almost from the moment he graduated, William T. Sherman came under pressure to think about leaving the Army. When asked why he did not resign, he gave a forthright answer in 1842: “Why should I? It is the profession for which my education alone fits me, and as all the appearances indicate the rapid approach of action when the soldier will be required to do his proper labor, when a splendid field will be spread before him, every reason exists why I should remain.” The “action” Sherman referred to was the Second Seminole War (1835–42) in Florida. Sherman’s posting to Fort Pierce threw him into his first taste of warfare. He very quickly grasped the nature of this war and the Seminole tactics that had defied the best military minds in America. In June of 1842, the Regiment found itself on the move again, posted to Fort Moultrie, Charleston, South Carolina. Sherman’s main duty consisted of appearing in court martials, as his grasp of military law impressed all. While clinging to the profession he liked best, he developed two attitudes that underwrote his army life. The first concerned party politics, while the second matter involved religion. Both these qualities would be needed by a successful attorney. Yet he remained an army officer and these studies became an important part of his continuing military education.

This chapter examines a notorious episode of prejudice against Jews during the Civil War: the battle to amend the military chaplaincy law, passed in 1861, that stipulated that a regimental chaplain be a “regular ordained minister of some Christian denomination.” Protestant chaplains and, to a certain extent, Catholic ones, made the most of their opportunity to influence the troops in the field. By contrast, Jewish chaplains were officially barred from the ranks, putting Jewish soldiers at a great disadvantage and, in effect, rendering the Jewish faith illegitimate in the military. This chapter considers the controversy surrounding the right of rabbis to serve as military chaplains during the war.

In “Lawmaking, Bilateral Rules, and a Debunking of Catch-22,” Levmore describes Joseph Heller’s antiwar novel Catch-22 as a “one-trick pony” that has little to say about law. The paradoxical legal rules that have made Catch-22 so famous bear little relation to actual law, Levmore argues. Whereas Catch-22’s rules have a binary, either-or structure, actual law is filled with exceptions, caveats, or additional variables that soften the law’s effects. In real life, where a rule might seem too stark, law generally utilizes a standard. Levmore observes that a novel’s ability to engender empathy or compassion likely depends on how plausible it is, and how connected with reality. On this dimension, he views Catch-22 as falling short.

Like Levmore, Masur observes that the quintessential feature of the absurdist guidelines in Catch-22 is that they are all structured as rules, rather than standards. There is no discretion available to the officers charged with implementing the army’s battery of legal commands and regulations. But whereas Levmore sees this as unrealistic, Masur argues that strict legal rules are endemic to large organizations such as the army. Governing millions of people is an immense logistical and organizational challenge. Upper-level commanders must ensure that mid-level officers follow orders consistently; mid-level officers must ensure that they are treating their soldiers equitably and without favoritism. In fact, as Masur observes, the modern US Army operates under the guidance of hundreds of minute and often preposterous rules, just like the army in Heller’s novel. In this respect, Catch-22 succeeds in capturing important features of both war and other types of mass mobilization.

Witt begins by observing that although the short story “An Occurrence at Owl Creek Bridge” is often anthologized and has long been a staple of high school curricula and the subject of music videos, television, and film, it is not typically thought of as a study in the dilemmas of humanitarian law. But, Witt argues, it is just that. The story depicts an execution for violation of the laws of war. Its author was a Union Army veteran. Moreover, the text embodies a central tension in the laws of war, one that emerged in Bierce’s time and persists today. On the one hand stands a sentimental humanitarianism that aims to minimize the human suffering of war. On the other, a righteous humanitarianism chafes at the constraints that sentimental humanitarianism places on the pursuit of justice. Witt demonstrates that Bierce’s “Owl Creek” straddles the two planks of the modern laws of war, conveying the power of both views.