Skip to main content
×
×
Home

Lawless Wars of Empire? The International Law of War in the Philippines, 1898–1903

  • Will Smiley
Extract

Writing for his fellow military officers in early 1903, United States Army Major C.J. Crane reflected on the recent Philippine–American War. The bloody struggle to suppress an insurgency in the Philippines after the United States had annexed them from Spain in 1899 had officially concluded the previous July. The war had been accompanied by fierce racist sentiments among Americans, and in keeping with these, Crane described his foes as “the most treacherous people in the world.” But Crane's discussion drew as much on concepts of law as it did on race. The average American officer, Crane argued, had “remembered all the time that he was struggling with an enemy who was not entitled to the privileges usually granted prisoners of war,” and could be summarily executed, without benefit of “court-martial or other regular tribunal.” If anything, the Americans had been too generous. “Many [American] participants in the struggle,” he maintained, “have failed to fully understand that we were practically fighting an Asiatic nation in arms and almost every man a soldier in disguise and a violator” of the laws of war. But what did those laws mean to the United States during the conflict, and what does this indicate about the broader history of international law's relationship to empire?

  • View HTML
    • Send article to Kindle

      To send this article to your Kindle, first ensure no-reply@cambridge.org is added to your Approved Personal Document E-mail List under your Personal Document Settings on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part of your Kindle email address below. Find out more about sending to your Kindle. Find out more about sending to your Kindle.

      Note you can select to send to either the @free.kindle.com or @kindle.com variations. ‘@free.kindle.com’ emails are free but can only be sent to your device when it is connected to wi-fi. ‘@kindle.com’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply.

      Find out more about the Kindle Personal Document Service.

      Lawless Wars of Empire? The International Law of War in the Philippines, 1898–1903
      Available formats
      ×
      Send article to Dropbox

      To send this article to your Dropbox account, please select one or more formats and confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your <service> account. Find out more about sending content to Dropbox.

      Lawless Wars of Empire? The International Law of War in the Philippines, 1898–1903
      Available formats
      ×
      Send article to Google Drive

      To send this article to your Google Drive account, please select one or more formats and confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your <service> account. Find out more about sending content to Google Drive.

      Lawless Wars of Empire? The International Law of War in the Philippines, 1898–1903
      Available formats
      ×
Copyright
Corresponding author
Footnotes
Hide All

He thanks, most of all, John Witt and Oona Hathaway, whose feedback shaped this article. He is also grateful to Josef Ansorge, Nana Antwi-Ansorge, Celia Choy, Marissa Doran, Sarah Millings, Logan Rogers, Ivy Wang, and Bryn Williams for reading and commenting on drafts, and to Sam Erman, Peter Holquist, and Mos Thravalos for their advice. Finally, he thanks the staffs of the Cambridge University and Yale Law School libraries and the National Archives and Records Administration's Washington location for their help in locating sources.

Footnotes
References
Hide All

1. Crane, C.J., “Paragraphs 93, 97, and 88, of General Orders 100,” Journal of the Military Service Institution 32 (1903): 256.

2. Ibid., 256.

3. See Kramer, Paul A., The Blood of Government: Race, Empire, the United States, & the Philippines (Chapel Hill: University of North Carolina Press, 2006); see also Barnett, Louise K., Atrocity and American Military Justice in Southeast Asia: Trial by Army (London: Routledge, 2010). By “Western,” I mean the Atlantic imperial powers of Northern and Western Europe, and the United States.

4. See Anghie, Antony, Imperialism, Sovereignty, and the Making of International Law (Cambridge: Cambridge University, 2005); Gong, Gerrit W., The Standard of “Civilization” in International Society (New York: Oxford University Press, 1984).

5. Mazower, Mark, Governing the World: The History of an Idea (New York: Penguin, 2012), 7778. See also Kinsella, Helen M., The Image before the Weapon: A Critical History of the Distinction between Combatant and Civilian (Ithaca: Cornell University Press, 2011); and Koskenniemi, Martti, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870–1960 (Cambridge: Cambridge University Press, 2001), 98178. However, Isabel Hull points to countervailing tendencies among legal scholars: Hull, Isabel V., Absolute Destruction: Military Culture and the Practices of War in Imperial Germany (Ithaca: Cornell University Press, 2005); and Hull, Isabel V., “Prisoners in Colonial Warfare: The Imperial German Example,” in Prisoners in War, ed. Scheipers, Sibylle (Oxford: Oxford University Press, 2010), 158.

6. Mégret, Frédéric, “From ‘Savages’ to ‘Unlawful Combatants’: A Postcolonial Look at International Humanitarian Law's ‘Other,’” in International Law and Its Others, ed. Orford, Anne (Cambridge: Cambridge University Press, 2009), 268. Mégret describes ideas of non-Western inclusion as essentially marginal and theoretical (275–78). A similar approach—suggesting that “there is no lawlessness” in “liberal counterinsurgencies” because law creates its own exceptions and exclusions—is found in Khalili, Laleh, Time in the Shadows: Confinement in Counterinsurgencies (Stanford, CA: Stanford University Press, 2013), 100.

7. See Raustiala, Kal, Does the Constitution Follow the Flag? The Evolution of Territoriality in American Law (Oxford: Oxford University Press, 2009); McCoy, Alfred W., Policing America's Empire: The United States, the Philippines, and the Rise of the Surveillance State (Madison, WI: University of Wisconsin Press, 2009); Sparrow, Bartholomew H., The Insular Cases and the Emergence of American Empire (Lawrence, KS: University Press of Kansas, 2006); Burnett, Christina Duffy and Marshall, Burke, eds., Foreign in a Domestic Sense: Puerto Rico, American Expansion, and the Constitution (Durham, NC: Duke University Press, 2001); Thompson, Winfred Lee, The Introduction of American Law in the Philippines and Puerto Rico, 1898–1905 (Fayetteville, AR: University of Arkansas Press, 1989); Erman, Sam, “Citizens of Empire: Puerto Rico, Status, and Constitutional Change,” California Law Review 102 (2014): 1181–241; Erman, Sam, “Meanings of Citizenship in the U.S. Empire: Puerto Rico, Isabel Gonzalez, and the Supreme Court, 1898–1905,” Journal of American Ethnic History 27 (2008): 533; Cleveland, Sarah H., “Powers Inherent in Sovereignty: Indians, Aliens, Territories, and the Nineteenth Century Origins of Plenary Power over Foreign Affairs,” Texas Law Review 81 (2002–2003): 1284; and Clara Altman, “Courtroom Colonialism: Philippine Law and U.S. Rule, 1898–1935,” PhD dissertation, Brandeis University, 2014.

8. See, for example, Barnett, Atrocity, 56, 66, 112; Carvin, Stephanie, Prisoners of America's Wars: From the Early Republic to Guantanamo (London: Hurst, 2010), 7782; Doyle, Robert C., The Enemy in Our Hands: America's Treatment of Enemy Prisoners of War, from the Revolution to the War on Terror (Lexington, KY: University Press of Kentucky, 2010), 153, 157; Springer, Paul J., America's Captives: Treatment of POWs from the Revolutionary War to the War on Terror (Lawrence, KS: University Press of Kansas, 2010), 132; Kramer, Blood of Government, 136; and Miller, Stuart Creighton, “Benevolent Assimilation”: The American Conquest of the Philippines, 1899–1903 (New Haven: Yale University Press, 1982), 95, 187.

9. Witt, John Fabian, Lincoln's Code: The Laws of War in American History (New York: Free Press, 2012), 358, 361. Witt notes officers’ differing opinions on the law's applicability.

10. See, for example, Linn, Brian McAllister, The Philippine War, 1899–1902 (Lawrence, KS: University Press of Kansas, 2000); Linn, Brian McAllister, The U.S. Army and Counterinsurgency in the Philippine War, 1898–1902 (Chapel Hill, NC: University of North Carolina Press, 1989); Gates, John Morgan, Schoolbooks and Krags: The United States Army in the Philippines, 1898–1902 (Westport, CT: Greenwood, 1973); and Boot, Max, The Savage Wars of Peace: Small Wars and the Rise of American Power (New York: Basic Books, 2002), 123124, 127.

11. Hibbitts, Bernard J., “Martial Lawyers: Lawyering and War-Waging in American History,” Seattle Journal for Social Justice 13 (2015): 406; and Witt, John Fabian, “Law and War in American History,” American Historical Review 115 (2010): 779.

12. Kramer, Blood of Government, 109–10. This narrative draws generally on Kramer, as well as Linn, Philippine War; Miller, Benevolent Assimilation.

13. Linn, Philippine War, 55.

14. Ibid., 58.

15. See Kramer, Blood of Government.

16. Codman, Julian and Storey, Moorfield, Secretary Root's Record: “Marked Severities” in Philippine Warfare (Boston: G.H. Ellis, 1902), 10. See also Kramer, Blood of Government, 102.

17. Codman and Storey, Root's Record, 6.

18. Magoon, Charles E., Reports on the Law of Civil Government in Territory Subject to Military Occupation by the Military Forces of the United States (Buffalo, NY: Hein, 1972), 36.

19. See The Amy Warwick (Prize Cases), 67 U.S. 635, 673 (1862) (“the belligerent party who claims to be sovereign, may exercise both belligerent and sovereign rights”); Witt, Lincoln's Code, 150; Miller, Benevolent Assimilation, 87–88; Kramer, Blood of Government, 88.

20. See Fourteen Diamond Rings, 183 U.S. 176, 181 (1901). See also Sparrow, Insular Cases, 151–55; Magoon, Law of Civil Government, 10–255; Hoyt, Henry M., “The Final Phase of the Insular Tariff Controversy,” Yale Law Journal 14 (1904–1905): 333–42.

21. See Thomas v. U.S., 39 Ct.Cl. 1 (1903); and Leigh v. U.S., 43 Ct.Cl. 374 (1908) (both awarding additional pay to naval officers for wartime service).

22. National Archives and Records Administration (hereafter NARA), Record Group (hereafter RG) 153, Judge  Advocate General (JAG) Doc. File, #10252, Opinion of JAG Lieber, April 17, 1901.

23. NARA, RG 153, JAG Doc. File, #15754, Opinion of JAG George B. Davis, December 26, 1903. Miller contends that the government argued that there was not a war, inorder to avoid paying combat pay: Miller, Benevolent Assimilation,165–66.

24. NARA, RG 153, JAG Doc. File, #8195, Opinion of JAG Guido Norman Lieber, May 9, 1900; NARA, RG 153, JAG Doc. File, #10881, Opinion of JAG Davis, December 9, 1902.

25. United States Army JAG's Department, A Digest of Opinions of the Judge Advocates General of the Army, 1912 (Washington, DC: Government Printing Office, 1912), 175.

26. NARA, RG 153, JAG Doc. File, #19734, Opinion of JAG Davis, May 15, 1906; NARA, RG 153, JAG Doc. File, #16859, Opinion of JAG Davis, September 7, 1904.

27. NARA, RG 153, JAG Doc. File, #12184, various opinions of JAG Davis, 1901–3; Miller, Benevolent Assimilation, 164–65; JAG's Department, Digest, 1066; and United States Army Adjutant General's Office (hereafter A.G.O.), Correspondence Relating to the War with Spain, 1898–1902 (Washington, DC: Government Printing Office, 1902), II:152. For the historically fraught question of “when is war,” see Dudziak, Mary L., War Time: An Idea, Its History, Its Consequences (Oxford: Oxford University Press, 2012).

28. See A.G.O., Correspondence, 893–1159; Kramer, Blood of Government, 112.

29. A.G.O., Correspondence, 1088.

30. Codman and Storey, Root's Record, 38; and Gates, Schoolbooks and Krags, 65.

31. Codman and Storey, Root's Record, 38; see also Linn, Philippine War, 211.

32. See Witt, Lincoln's Code. The code itself can be found at 375–94, or at “General Orders No. 100: The Lieber Code,” The Avalon Project, http://avalon.law.yale.edu/19th_century/lieber.asp (accessed April 17, 2018).

33. Witt, Lincoln's Code,  2–3, 347–53.

34. A.G.O., Correspondence, 1098.

35. Miller, Benevolent Assimilation, 213–14.

36. NARA, RG 94, A.G.O. Doc. File, #344307, MacArthur to Adjutant General Henry Corbin, August 25, 1900. For Alejandrino, see “Jose Alejandrino,” Senate of the Philippines, https:// www.senate.gov.ph/senators/former_senators/jose_alejandrino.htm (accessed April 26, 2017).

37. NARA, RG 94, A.G.O. Doc. File, #338335, Diary of Events, Headquarters, Division of the Philippines, for April 18–May 13, 1901, Hughes to Brigadier General T.H. Barry, April 26, 1901.

38. Apolinario Mabini, an adviser to Aguinaldo, protested this: Witt, Lincoln's Code, 354–55.

39. JAG's Department, Digest, 1063.

40. LeRoy, James A., The Americans in the Philippines (New York: Houghton Mifflin, 1914), 224.

41. “Military necessity … allows of all destruction of property,” G.O. 100, Article 15.

42. JAG's Department, Digest, 251, 1063.

43. Magoon, Law of Civil Government, 262–63.

44. JAG's Department, Digest, 1063.

45. Ibid., 250. After the United States entered the First World War, the 1918 Indemnity Act (later updated as the Foreign Claims Act) established a procedure for paying for damages caused by American forces overseas. See Witt, John Fabian, “Form and Substance in the Law of Counterinsurgency Damages,” Loyola of Los Angeles Law Review 41 (2007–2008): 1455–81.

46. JAG's Department, Digest; and Magoon, Law of Civil Government, 264–70.

47. Tucker Act, 24 Stat. 505 (1887).

48. JAG's Department, Digest, 252–53.

49. Castelo v. U.S., 51 Ct.Cl. 221 (1916). Brigadier General J. Franklin Bell had seized the boat during his December 1901 campaign in Batangas (see the section “Communal Responsibility” in this article), in order to put pressure on the Filipino leader Sixto López—possibly a relative of owner José López y Castelo—whom Bell believed to be the boat's beneficial owner. See NARA, RG 94, A.G.O. Doc. File, #338335, Bell, Telegram Regarding Movement Contemplated in Batangas, December 26, 1901.

50. Miller, Benevolent Assimilation, 69; and LeRoy, Americans in the Philippines, 223–24.

51. See Neff, Stephen C., Justice in Blue and Gray: A Legal History of the Civil War (Cambridge, MA: Harvard University Press, 2010), 5960, 71, 82–83; and Witt, Lincoln's Code, 128.

52. A.G.O, Correspondence, 921. The remainder were likely released.

53. Springer, America's Captives, 129.

54. As with the broader United States theory of the war, this mirrored the approach taken in the Civil War; see Witt, Lincoln's Code, 142–63.

55. NARA, RG 94, A.G.O. Doc. File, #338335, Diary of Events, Division of the Philippines for May 6–June 14, 1900, Brigadier General Loyd Wheaton to Adjutant General, Division of the Philippines, May 22, 1900; Annual Report of Major General Arthur MacArthur, U.S. Army, Commanding, Division of the Philippines (Washington, DC: Government Printing Office, 1901), I:90.

56. Springer, America's Captives, 129–30; Miller, Benevolent Assimilation, 161–62; and A.G.O., Correspondence, 979, 1079, 1175–77, 1181, 1203–4.

57. See Witt, Lincoln's Code.

58. Kramer, Blood of Government, 90, 94, 100.

59. A.G.O., Correspondence, 1184.

60. Annual Report, 88.

61. See A.G.O., Correspondence, 999, 1001, 1035–60; Annual Report, 103; and Kramer, Blood of Government, 130; see also Boot, Savage Wars, 114.

62. Linn, Philippine War, 193–94; and Worcester, Dean C., The Philippines Past and Present (New York: MacMillan, 1921), 210.

63. A.G.O., Correspondence Relating to the War with Spain, 1898–1902 (Washington, DC: Government Printing Office, 1902), 1120.

64. LeRoy, Americans in the Philippines, 196–97 n. 1.

65. Miller, Benevolent Assimilation, 216.

66. LeRoy, Americans in the Philippines, 195.

67. Linn, Counterinsurgency, 21–22.

68. G.O. 100, Article 82.

69. These commissions had roots in the Mexican–American War and Civil War. See Myers, Erika, “Conquering Peace: Military Commissions as a Lawfare Strategy in the Mexican War,” American Journal of Criminal Law 35 (2008): 201–40; and Witt, Lincoln's Code, 122–32.

70. Quoted in Boot, Savage Wars, 113; see also Kramer, Blood of Government, 134; and Gates, Schoolbooks and Krags, 191–92.

71. Charges of Cruelty, Etc., to the Natives of the Philippines: Letter from the Secretary of War Relative to the Reports and Charges in the Public Press of Cruelty and Oppression Exercised by Our Soldiers toward Natives of the Philippines (Washington, DC: Government Printing Office, 1902), 40.

72. Linn, Counterinsurgency, 24, 49.

73. NARA, RG 94, A.G.O. Doc. File, #338335, Diary of Events, Headquarters, Division of the Philippines, for September 22–30, 1900, Wheaton to Adjutant General, Division of the Philippines, September 25, 1900 (quoting a report from Young to Wheaton).

74. Linn, Counterinsurgency, 22, sees a lack of orders to implement G.O. 100 rather than the lack of a clear legal standard.

75. Linn, Philippine War, 211–12.

76. LeRoy, Americans in the Philippines, 211 n. 1; Annual Report, App. C:1. Twenty more records were still awaiting MacArthur's review on September 1, 1900. For a list of those tried in 1900, and their offenses, see NARA, RG 153, JAG Doc. File, #12291.

77. Glazier, David, “Precedents Lost: The Neglected History of the Military Commission,” Virginia Journal of International Law 46 (2006): 48.

78. Annual Report, App. C:2.

79. Linn, Philippine War, 212.

80. Gates, Schoolbooks and Krags, 190–91.

81. Ibid., 191.

82. The following paragraph is based on NARA, RG 94, #338335, Diary of Events for September 22–30, 1900, Evans to Adjutant of United States Forces at Laoag, August 23, 1900. Decades earlier, Evans had penned a similarly “stern vision” of G.O. 100, arguing that it allowed “retaliation against savages” in the Indian wars: Witt, Lincoln's Code, 337.

83. NARA, RG 94, A.G.O. Doc. File, #338335, Diary of Events for September 22–30, 1900, Wheaton to Adjutant, Division of the Philippines, September 25, 1900 (quoting a report from Young to Wheaton).

84. Linn, Counterinsurgency, 34.

85. NARA, RG 94, A.G.O. Doc. File, #338335, Diary of Events for December 19, 1900–January 12, 1901, Young to Wheaton, December 28, 1900; see also Gates, Schoolbooks and Krags, 190.

86. NARA, RG 94, A.G.O. Doc. File, #338335, Diary of Events for January 12–30, 1901, Wheaton to Adjutant General, Division of the Philippines, January 11, 1901.

87. NARA, RG 94, A.G.O. Doc. File, #338335, Diary of Events for January 12–30, 1901, Barry to Young, January 4, 1901; Young to Adjutant, Department of Northern Luzon, January 17, 1901.

88. See G.O. 100, Article 29; Gates, Schoolbooks and Krags, 283. This view was critical to Lieber's approach: Witt, Lincoln's Code.

89. NARA, RG 94, A.G.O. Doc. File, #338335, Diary of Events of Headquarters, Division of the Philippines for January 12–30, 1901, Wheaton to Adjutant, Division of the Philippines, January 22, 1901.

90. LeRoy, Americans in the Philippines, 200.

91. A.G.O., Correspondence, 1175.

92. LeRoy, Americans in the Philippines, 201; A.G.O., Correspondence, 1175, 1203–4. After capturing Aguinaldo (discussed later in this article) MacArthur, suggested another amnesty on April 1, 1901, to expire June 1, “after which all in arms considered outlaws, criminals, treated accordingly.” However, Corbin twice vetoed this suggestion. A.G.O., 1265–68. He may have approved a similar proposal targeted only at the island of Samar in the spring of 1901: A.G.O., 1278–79.

93. Kramer, Blood of Government, 136; Linn, Philippine War, 213; and A.G.O. Correspondence, 1203–4.

94. A.G.O., Correspondence, 1206.

95. LeRoy, Americans in the Philippines, 202.

96. Annual Report, 91.

97. A.G.O., Correspondence, 1237–38. He simultaneously deported thirty-eight Filipino leaders to exile in Guam: Boot, Savage Wars, 116.

98. Annual Report, 6.

99. Linn, Philippine War, 213. The orders are also discussed in Kramer, Blood of Government, 136–37; and Gates, Schoolbooks and Krags, 191–92.

100. Annual Report, 6–7.

101. See G.O. 100, Articles 90–92, 95, 102–4.

102. Annual Report, 7.

103. Ibid., 7–8.

104. Ibid., 8.

105. See G.O. 100, Articles 81–85.

106. Annual Report, 9.

107. Ibid. See G.O. 100, Article 82.

108. Annual Report, 9. Six months earlier, Corbin had vetoed MacArthur's suggestion of including such language in his amnesty proposal: A.G.O., Correspondence, 1177–79.

109. Annual Report, 9.

110. “Convention with Respect to the Laws and Customs of War on Land (Hague, II) (29 July 1899),” The Avalon Project, http://avalon.law.yale.edu/19th_century/hague02.asp (accessed April 17, 2018); and Witt, Lincoln's Code, 342–52.

111. As Helen Kinsella has argued, the term “civilian” has had shifting and “indeterminate” meanings throughout history. I use it here and later with the meaning of “noncombatant,” but as will be discussed, the boundaries of who was recognized as a civilian, and what that meant, changed with time and circumstance. See Kinsella, Image before the Weapon.

112. G.O. 100, Article 29, 156. See also Witt, Lincoln's Code, 3–4; and Mark Grimsley, The Hard Hand of War: Union Military Policy Toward Southern Civilians, 1861–1865 (Cambridge: Cambridge University Press, 1995), 151.

113. NARA, RG 94, A.G.O. Doc. File, #338335, Diary of Events for Headquarters, Division of the Philippines for December 19, 1900–January 12, 1901, Bell to Adjutant General, Division of the Philippines, December 31, 1900.

114. NARA, RG 94, A.G.O. Doc. File, #338335, Diary of Events for Headquarters, Division of the Philippines for December 14–December 29, 1900, Assistant Adjutant General Arthur L. Wagner to Commanding General, 4th District, December 26, 1900.

115. Paul Kramer suggests that “MacArthur's proclamation defined these terms in ways that embraced the entire population in areas of combat as potential targets of punishment.” In understanding changing United States legal interpretations, the word “potential” is key. Kramer, Blood of Government, 137.

116. Annual Report, 7.

117. William Gardner Bell, Commanding Generals and Chiefs of Staff, 1775–1983 (Washington, DC: Center of Military History, 1983), 98.

118. NARA, RG 94, A.G.O. Doc. File, #338335, Diary of Events for December 19, 1900–January 12, 1901, Bell to Adjutant General, Division of the Philippines, December 31, 1900. However, Bell did allow the use of indirect evidence, so that “[w]hen a prominent insurgent is caught living in a house in Manila it is morally certain that all persons living in the same house are cognizant of his character. They have thus rendered aid and assistance to the insurrection by harboring him, and resting upon them is the burden of proof that they have not done worse.”

119. NARA, RG 94, A.G.O. Doc. File, #338335, Diary of Events for December 14–December 29, 1900, Wagner to Commanding General, 4th District, December 26, 1900.

120. NARA, RG 94, A.G.O. Doc. File, #338335, Diary of Events for December 14–December 29, 1900, Barry to Department of Northern Luzon, December 19, 1900.

121. This example comes from Roger W. Barrett and Lester Nurick, “Legality of Guerrilla Forces under the Laws of War,” American Journal of International Law 40 (1946): 576–77.

122. NARA, RG 153, JAG Doc. File, #12291, list of Filipinos sentenced by military commissions; NARA, RG 153, JAG Doc. File, #17546, Complete List of Prisoners Under the Control of the Civil Government of the Philippine Islands, February 2, 1905; Springer, America's Captives, 129; Annual Report, App. C:1–2; and Barrett and Nurick, “Legality of Guerrilla Forces,” 576–77. Seventy-nine people were executed between September 1900 and June 1901, with 164 sentenced to 10 years’ imprisonment or more: Thravalos, Haridimos, “History, Hamdan, and Happenstance: ‘Conspiracy by Two or More to Violate the Laws of War by Destroying Life or Property in Aid of the Enemy,’Harvard National Security Journal 3 (2012): 223–81.

123. Barrett and Nurick, “Legality of Guerrilla Forces,” 577.

124. Robert Chesney, “Historical Examples of Remand to Military Detention after Commission Prosecution,” Lawfare (blog), October 25, 2011, https://lawfareblog.com/historical-examples-remand-military-detention-after-commission-prosecution (accessed April 17, 2018).

125. NARA, RG 94, A.G.O. Doc. File, #338335, Diary of Events for April 18–May 13, 1901, Division of the Philippines, Major Fred A. Smith to Adjutant General, Division of Southern Luzon, April 15, 1901; 136; and Springer, America's Captives, 130. Nurick and Barrett argue that the United States accorded combatant privilege to those who met the four criteria that were later codified in the 1907 Hague Rules: being responsible commanders, having distinctive emblems, openly carrying weapons, and fighting according to the laws of war: Barrett and Nurick, “Legality of Guerrilla Forces,” 576.

126. Annual Report, App. C:3.

127. For the massacre and its aftermath, see, generally, Barnett, Atrocity, 65–66; and Miller, Benevolent Assimilation, 200–207.

128. Miller, Benevolent Assimilation, 219.

129. Codman and Storey, Root's Record, 112 (reproducing Bell's orders of December 24, 1901).

130. Ibid., 101 (reproducing Bell's orders of December 24, 1901).

131. Ibid., 105 (reproducing Bell's orders of December 24, 1901).

132. They were not the only United States officers interested in this: Linn, Counterinsurgency, 144–45.

133. Codman and Storey, Root's Record, 102 (reproducing Bell's orders of December 24, 1901).

134. Ibid., 112 (reproducing Bell's orders of December 24, 1901).

135. Ibid., 107 (reproducing Bell's orders of December 9, 1901).

136. Ibid., 84 (quoting Bell's orders of January 23, 1902).

137. Barnett, Atrocity, 82.

138. Kramer, Blood of Government, 152–54; Boot, Savage Wars, 123–24; and Gates, Schoolbooks and Krags, 260–61.

139. Codman and Storey, Root's Record, 103 (reproducing Smith's orders of December 24, 1901).

140. Ibid., 107 (reproducing Bell's orders of December 9, 1901).

141. NARA, RG 153, JAG Doc. File, #4275, memorandum regarding Bell's orders, July 8, 1904.

142. Ibid. See also Worcester, Philippines, 222–24 (summarizing Bell's policies approvingly).

143. Codman and Storey, Root's Record, 109 (reproducing Bell's orders of December 15, 1901). See G.O. 100, Article 17.

144. Codman and Storey, Root's Record, 111 (reproducing Bell's orders of December 21, 1901).

145. Kramer, Blood of Government, 89. See also Barnett, Atrocity.

146. Quoted in Kramer, Blood of Government, 138; Miller, Benevolent Assimilation, 150, 162; and LeRoy, Americans in the Philippines, 202 (he calls the principle “race-feeling”).

147. Charges of Cruelty, 50 (reproducing Bell's 1901 report).

148. See Barnett, Atrocity, 15.

149. Ibid., 61. Barnett emphasizes the role that stereotypes played in courts-martial. Arguably, this perceived “problem” led to postwar plans to document and identify the entire population. See McCoy, Policing America's Empire.

150. Bell, Commanding Generals, 98, 207; and Fritz, David L., “Before the ‘Howling Wilderness’: The Military Career of Jacob Hurd Smith, 1862–1902,” Military Affairs 43 (1979): 187. There was no requirement that a judge advocate have legal training: Winthrop, William, Military Law (Washington, DC: W.H. Morrison, 1886), I:247.

151. Miller, Benevolent Assimilation, 207.

152. NARA, RG 153, JAG Doc. File, #4275, memorandum regarding Bell's orders, July 8, 1904; and Witt, Lincoln's Code, 358.

153. JAG's Department, Digest, 249–50.

154. Codman and Storey, Root's Record, 33.

155. Quoted in Barnett, Atrocity, 69. See also Miller, Benevolent Assimilation, 218–28.

156. See Witt, Lincoln's Code, 355–56; Schumacher, Frank, “‘Marked Severities’: The Debate Over Torture during America's Conquest of the Philippines, 1899–1902,” Amerikastudien/American Studies 51 (2006): 475–98; Paul A. Kramer, “The Water Cure: Debating Torture and Counterinsurgency—A Century Ago,” The New Yorker, February 25, 2008, https://www.newyorker.com/magazine/2008/02/25/the-water-cure (accessed April 17, 2018).

157. Miller, Benevolent Assimilation, 95.

158. See Barnett, Atrocity, 23–31; and Miller, Benevolent Assimilation, 95, 212–18, 231–52.

159. See Kramer, Blood of Government, 146–47.

160. Quoted in Miller, Benevolent Assimilation, 211.

161. Quoted in Miller, 215; see also Codman and Storey, Root's Record, 98.

162. Theodore S. Woolsey, “The Legal Aspects of Aguinaldo's Capture,” The Outlook, April 13, 1901, 855–56. For accounts of the capture, see Boot, Savage Wars, 118–19; and Miller, Benevolent Assimilation, 169. For Roosevelt's involvement, see Witt, Lincoln's Code, 355. Funston himself had earlier executed prisoners while being careful to maintain that his actions were lawful: Linn, Counterinsurgency, 78–79.

163. Woolsey, “Aguinaldo's Capture,” 856.

164. See Charges of Cruelty. Most of these courts-martial concerned the “criminal acts of individuals who happened to be military personnel,” and thus were not “entwined with military policy”: Barnett, Atrocity, 41, 58.

165. See Codman and Storey, Root's Record; Kramer, Blood of Government, 145–46; and Hixson, William B. Jr., Moorfield Storey and the Abolitionist Tradition (Oxford: Oxford University Press, 1972).

166. Codman and Storey, Root's Record, 3–62 passim.

167. Ibid., 112 (quoting Bell's December 24, 1901 orders).

168. Ibid., 112.

169. Ibid., 80. See G.O. 100, Article 28.

170. Codman and Storey, Root's Record, 81–82.

171. Ibid.

172. Codman and Storey, Root's Record, 25. Union generals did destroy crops and buildings and arrest Southern civilians en masse to combat guerrillas: Neff, Justice in Blue and Gray, 90–93.

173. Codman and Storey, Root's Record, 87.

174. Ibid., 84.

175. For an account of both these and earlier courts-martial, emphasizing the role of racism, see generally Barnett, Atrocity, 60–120.

176. Ibid., 84–85; see also Friedman, Leon, ed., The Law of War: A Documentary History (New York: Random House, 1972).

177. Miller, Benevolent Assimilation, 230.

178. Barnett, Atrocity, 86.

179. Friedman, Law of War, 810.

180. Ibid., 801, 812; and Codman and Storey, Root's Record, 33.

181. Barnett, Atrocity, 87; and Friedman, Law of War, 800, 812–13. The court had recommended a reprimand, but Roosevelt increased this to dismissal. Courts-martial for lower-ranking offenders featured similar evasions: Barnett, Atrocity, 22–59.

182. See, generally, Witt, Lincoln's Code, 358–61; Barnett, Atrocity, 90–99, 112–13; and Miller, Benevolent Assimilation, 228.

183. Barnett, Atrocity, 112; Friedman, Law of War, 818. Glenn does not seem to have made this argument quite as explicitly in his first court-martial; the quotation is from his second trial.

184. Friedman, Law of War, 819; see also Witt, Lincoln's Code, 358–63; and Barnett, Atrocity, 96. Davis also rejected Glenn's claim that the water cure was justified by military necessity, as the court had.

185. See Magoon, Charles E., “The Exercise of the Pardoning Power in the Philippines,” Yale Law Journal 12 (1903): 405–18.

186. Quoted in JAG's Department, Digest, 1082.

187. Kramer, Blood of Government, 155.

188. Gedacht, Joshua, “‘Mohammedan Religion Made It Necessary to Fire’: Massacres on the American Frontier from South Dakota to the Southern Philippines,” in Colonial Crucible: Empire in the Making of the Modern American State, ed. McCoy, Alfred W. and Scarano, Francisco A. (Madison, WI: University of Wisconsin Press, 2009), 406–7.

189. Ibid., 406–7.

190. NARA, RG 94, A.G.O. Doc. File, #338335, Davis to Lee, March 27, 1903.

191. See Sparrow, Insular Cases; Burnett and Marshall, Foreign in a Domestic Sense; Erman, “Citizens of Empire”; and Erman, “Meanings of Citizenship.”

192. See U.S. v Hamdan, 801 F.Supp. 2d 1247 (U.S. Ct. Mil. Comm'n Rev. 2011); Government Response To Defense Motion To Dismiss, United States v. Al-Nashiri, No. AE 048 (U.S. Ct. Mil. Comm'n Rev. March 26, 2012), http://www.lawfareblog.com/2012/04/motions-hearing-preview-in-united-states-v-al-nashiri-defense-challenge-to-the-conspiracy-charge/ (accessed April 17, 2018); Thravalos, “History, Hamdan, and Happenstance”; Barrett and Nurick, “Legality of Guerrilla Forces”; and Chesney, “Remand to Military Detention.” See for example U.S. v. Hamdan, 801 F.Supp. 2d 1247; Thravalos, “History, Hamdan, and Happenstance”; Glazier, “Precedents Lost”; and Chesney, “Remand to Military Detention.”

193. See Kinsella, Image before the Weapon; Koskenniemi, Gentle Civilizer; and Mégret,  “From ‘Savages’ to ‘Unlawful Combatants.’”

194. Quoted in Pitts, Jennifer, “Empire and Legal Universalisms in the Eighteenth Century,” American Historical Review 117 (2012): 118. See also Anghie, Imperialism.

195. Quoted in Colby, Elbridge, “How to Fight Savage Tribes,” American Journal of International Law 21 (1927): 180.

196. See Mégret,  “From ‘Savages’ to ‘Unlawful Combatants.’”

197. See, for example, Chotzen, Anna, “Beyond Bounds: Morocco's Rif War and the Limits of International Law,” Humanity 5 (2014): 3354.

198. Colby, “How to Fight Savage Tribes,” 279, 287–88. For the article's background, see Mégret, “From ‘Savages’ to ‘Unlawful Combatants,’” 289–90.

199. See Özsu, Umut, Formalizing Displacement: International Law and Population Transfers (Oxford: Oxford University Press, 2015); Rodogno, Davide, Against Massacre: Humanitarian Interventions in the Ottoman Empire, 1815–1914 (Princeton: Princeton University Press, 2012); Genell, Aimee M., “The Well-Defended Domains: Eurocentric International Law and the Making of the Ottoman Office of Legal Counsel,” Journal of the Ottoman and Turkish Studies Association 3 (2016): 255–75; and Lorca, Arnulf Becker, “Universal International Law: Nineteenth-Century Histories of Imposition and Appropriation,” Harvard International Law Journal 51 (2010): 475552.

200. See generally Barnett, Atrocity; see also Kramer, Blood of Government; Hull, “Prisoners in Colonial Warfare,” 166–67, shows race's varied meanings in another colonial context.

201. Witt, Lincoln's Code.

202. Ibid., 328.

203. Ibid., 330–35. See also Kinsella, Image before the Weapon, 82–103; and Chomsky, Carol, “The United States-Dakota War Trials: A Study in Military Injustice,” Stanford Law Review 43 (1990): 1398.

204. For similar suggestions, see Barnett, Atrocity, 240; Carvin, Prisoners, 81; Kramer, Blood of Government, 112; and Kinsella, Image before the Weapon, 107–8.

205. Codman and Storey, Root's Record, 101 (quoting Bell's December 24, 1901 orders).

206. Worcester, Philippines, 222. On this particular occasion, he noted, such enforcement “was threatened, but not actually resorted to.”

207. Annual Report, App. C:3.

208. Condos, Mark, “License to Kill: The Murderous Outrages Act and the Rule of Law in Colonial India, 1867–1925,” Modern Asian Studies 50 (2016): 489.

209. See Howland, Douglas, “Sovereignty and the Laws of War: International Consequences of Japan's 1905 Victory over Russia,” Law and History Review 29 (2011): 5397; Howland, Douglas, “Japan's Civilized War: International Law as Diplomacy in the Sino-Japanese War (1894–1895),” Journal of the History of International Law 9 (2007): 179201; and Peter Holquist, “The Russian Empire as a ‘Civilized State’: International Law as Principle and Practice in Imperial Russia, 1874–1878” (Washington, DC: The National Council for Eurasian and East European Research, 2004).

210. Holquist, “Russian Empire as a ‘Civilized State,’” 15.

211. Hull, Absolute Destruction, 3, 126–30, 146. See also Hull, “Prisoners in Colonial Warfare.”

212. See Jochnick, Chris af and Normand, Roger, “The Legitimation of Violence: A Critical History of the Laws of War,” Harvard International Law Journal 35 (1994): 4995; for parallel concerns see also Witt, John Fabian, “Two Conceptions of Suffering in War,” in Knowing the Suffering of Others: Legal Perspectives on Pain and Its Meanings, ed. Sarat, Austin (Tuscaloosa, AL: University of Alabama Press, 2014), 129–57; and Moyn, Samuel, “From Antiwar Politics to Antitorture Politics,” in Law and War, ed. Sarat, Austin, Douglas, Lawrence, and Umphrey, Martha (Stanford: Stanford University Press, 2014), 154–97.

He thanks, most of all, John Witt and Oona Hathaway, whose feedback shaped this article. He is also grateful to Josef Ansorge, Nana Antwi-Ansorge, Celia Choy, Marissa Doran, Sarah Millings, Logan Rogers, Ivy Wang, and Bryn Williams for reading and commenting on drafts, and to Sam Erman, Peter Holquist, and Mos Thravalos for their advice. Finally, he thanks the staffs of the Cambridge University and Yale Law School libraries and the National Archives and Records Administration's Washington location for their help in locating sources.

Recommend this journal

Email your librarian or administrator to recommend adding this journal to your organisation's collection.

Law and History Review
  • ISSN: 0738-2480
  • EISSN: 1939-9022
  • URL: /core/journals/law-and-history-review
Please enter your name
Please enter a valid email address
Who would you like to send this to? *
×

Metrics

Altmetric attention score

Full text views

Total number of HTML views: 0
Total number of PDF views: 0 *
Loading metrics...

Abstract views

Total abstract views: 0 *
Loading metrics...

* Views captured on Cambridge Core between <date>. This data will be updated every 24 hours.

Usage data cannot currently be displayed