1 See Arthur, Nussbaum, A Concise History of the Law of Nations 226 (rev. ed. 1954)Google Scholar; Henry, Dunant, A Memory OF Solferino (English ed. 1959)Google Scholar.

2 Convention for the Amelioration of the Condition of the Wounded in Armies in the Field, Aug. 22, 1864, reprinted in The Laws of Armed Conflicts 279 (Dietrich, Schindler & Jiří, Toman eds., 3d rev. ed. 1988)Google Scholar [hereinafter Armed Conflicts] . The Convention, and the international Red Cross movement, grew out of a proposal by Henry Dunant of Geneva, Switzerland, who witnessed the suffering of the wounded after the 1859 battle of Solferino between France and Austria. See Nussbaum, supra note 1, at 224–27. In Un Souvenir de Solferino, Dunant called for “a special congress to formulate” an “international principle, with the sanction of an inviolable Convention, which . . . might constitute a basis for Societies for the relief of the wounded in the various countries of Europe.” Dunant, supra note 1, at 126.

3 Declaration Renouncing the Use, in Time of War, of Explosive Projectiles under 400 Grammes Weight, Nov. 29/Dec. 11, 1868, reprinted in Armed Conflicts, supra note 2, at 101.

4 U.S. War Department, General Orders No. 100, Apr. 24,1863 [hereinafter Lieber Code], reprinted in armed Conflicts, supra note 2, at 3.

5 See, e.g., Nussbaum, supra note 1, at 129–31, 139, 227; Frank Freidel, Francis Lieber, Nineteenthcentury Liberal 147–51, 332–35 (1947); Phillip, S. Paludan, Lincoln and the Rhetoric of Politics , in A Crisis of Republicanism 73 (Lloyd, E. Ambrosius ed., 1990)Google Scholar. In contrast, Dunant’s A Memory of Solferino, supra note 1, with its overt appeal to “noble and compassionate hearts and . . . chivalrous spirits,” id. at 118, represents a 19th-century Romantic approach to limiting war. Many of the Romantics (including Dunant) did not reject the Enlightenment appeal to reason as such but, rather, attempted to go beyond it to engage the emotions, cf Hugh Honour, Romanticism 280–82 (1979). Just as some Romantic artists and writers seem to have attempted to shock the public into religious faith, id. at 277–80, so Dunant, through gritty descriptions of individual suffering after Solferino, sought to shock the public into humanitarian action.

6 Military necessity is widely recognized as one of the underlying principles of the modern law of war. See, e.g., Michael, Bothe, Karl, Partsch & Waldemar, Solf, New Rules for Victims of Armed Conflicts 194–95 (1982)Google Scholar; U.S. Dept of the Air Force, International Law—The Law of Armed Conflict and Air Operations, para. l-3a(l) (AFP No. 110–31, 1976); 2 Georg Schwarzenberger, International Law 9–13 (1968); Myres S. Mcdougal & Florentino P. Feliciano, Law and Minimum World Public Order 521–22 (1961); cf. U.S. Dept of the Army, The Law of Land Warfare, para. S.a. (Field Manual No. 27–10, 1956) [hereinafter FM 27–10].

7 Declaration Renouncing the Use, in Time of War, of Explosive Projectiles under 400 Grammes Weight, supra note 3.

8 See U.S. Dep’t of the Army, The Army Lawyer: A History of the Judge Advocate General’s Corps, 1775–1975, at 49–52 (1975) [hereinafter The Army Lawyer]; Harold Hyman, A More Perfect Union 188–93 (Sentry 1975) (1973); Michael, Hoffman, Unplanned but Imperative: The Origins of the Judge Advocate General’s Civil Authority , Mil. L. Rev., Summer 1979, at 129, 132–35 Google Scholar.

9 See Freidel, supra note 5, at 11–18, 28, 52, 294. Two of Lieber’s sons served in the U.S. Army, one losing an arm because of wounds. The third son died of wounds while in Confederate service.

10 See Richard, S. Hartigan, Lieber’s Code and the Law of War 9, 43 (1983)Google Scholar; The Army Lawyer, supra note 8, at 61–62. Lincoln regarded the Union as indivisible. The seceding state governments and the Confederacy they formed were merely combinations of treasonous individuals, and had no other international or domestic legal status. See, e.g., Mark, Grimsley, The Hard Hand of War 11–13 (1995)Google Scholar; James, McPherson, Lincoln and the Strategy of Unconditional Surrender , in Lincoln, The War President 31, 41 (Gabor, Boritt ed., 1992)Google Scholar.

11 Letter, Francis Lieber to Henry W. Halleck (Nov. 13, 1862), quoted in Hartigan, supra note 10, at 79. The General in Chief, Major General Henry W. Halleck, had himself published a treatise on international law, and Lieber addressed him “as the jurist, no less than as the soldier.” Id.

12 U.S. War Department, Special Orders No. 399, Dec. 17, 1862, para. 5, quoted in id. at 85.

13 See Freidel, supra note 9, at 332–35.

14 When published, the Lieber Code was officially described as “instructions for the government of armies in the field, prepared by Francis Lieber, LL.D., and revised by a board of officers.” The President ordered that they be published “for the information of all concerned.” See Hartigan, supra note 10, at 106–07. Although issued to all organizations of the U.S. Army as a general order, the Lieber Code was therefore informational, rather than directive, in nature. That is, President Lincoln was not ordering all members of the army to comply with the code; rather, he was issuing it as one source (albeit an officially approved source) of the laws and customs of war. See Freidel, supra note 9, at 334–35.

15 Nussbaum, supra note 1, at 227.

16 Freidel, supra note 9, at 335.

17 Declaration Renouncing the Use, in Time of War, of Explosive Projectiles under 400 Grammes Weight, supra note 3.

18 See Regulations annexed to Convention [IV] Respecting the Laws and Customs of War on Land, Oct. 18, 1907, 36 Stat. 2227, reprinted in Armed Conflicts, supra note 2, at 63; Hartigan, supra note 10, at 22. Cf. Nussbaum, supra note 1, at 227.

19 See Freidel, supra note 9, at 333.

20 See U.S. Dep’t of the Air Force, supra note 6; McDougal & Feliciano, supra note 6; FM 27–10, supra note 6. But see Bothe, Partsch & Solf, supra note 6 (defining military necessity as the principle justifying measures “relevant and proportionate” to securing the prompt submission of the enemy). They would reserve the term “indispensable” to cases of “urgent” or “imperative” military necessity. Id. at 194 n.7. On the other hand, McDougal & Feliciano, supra, at 528, appear to regard “relevant and proportionate” violence to be equivalent to “indispensable” violence.

21 In addition, government policy on slavery had to be uniform, and not subject to the pro- or antislavery views of regional commanders. Before the Civil War, Hunter had been one of the few abolitionist officers in the U.S. regular army. See Edward Miller, Lincoln’s Abolitionist General (1997).

22 Abraham, Lincoln, Speeches and Writings 1859–1865, at 318–19 (Library of America ed., 1989)Google Scholar (emphasis added).

23 Brown v. United States, 12 U.S. (8 Cranch) 110, 122–23 (1814). As counsel before the Supreme Court in the case of Ware v. Hylton, 3 U.S. (3 Dall.) 199 (1796), John Marshall had unsuccessfully relied on this rule to argue that state governments, during the American Revolution, could “confiscate” private debts owed to British creditors because these were the property of enemy aliens. The Court rejected this argument as inconsistent with the terms of the Treaty of Paris ending the war. See Frances, Rudko, John, Marshall and International Law 26–30 (1991)Google Scholar.

24 By the 18th century, European powers no longer enslaved captured enemy nationals or held them for ransom, see The Antelope, 23 U.S. (10 Wheat.) 66(1825) (Marshall, C.J.), though the practice was still common in naval wars between those powers and the Muslim principalities of North Africa well into the 19th century, see Robert, Allison, The Crescent Obscured/The United States and the Muslim World 1776–1815, at 107–26 (1995)Google Scholar. Early 19th-century peace treaties between those states and the United States included guarantees that, in the event of another war, captives would not be enslaved but would be treated as prisoners of war. See Treaty of Peace and Amity, U.S.-Algiers, June 30, 1815, Art. 17, 6 Stat. 224; Treaty of Peace and Amity, U.S.-Tripoli, June 4, 1805, Art. 16, 8 Stat. 214. Slavery in the United States itself was the most tragic and longest lasting effect of the doctrine that war captives could be enslaved. Most of the Africans brought to America were originally enslaved as a result of their capture in wars between the kingdoms and nations of West Africa. See Peter, Kolchin, American Slavery 20 (1993)Google Scholar. For an individual example, see Terry, Alford, Prince Among Slaves 21–30 (Oxford paperback 1986)Google Scholar. Cf. Marshall’s opinion in The Antelope, supra.

25 See Freidel, supra note 5, at 339.

26 Lt. Col. Ludlow to Col. Hoffman (June 6, 1863), reprinted in Hartigan, supra note 10, at 113. In 18thcentury Europe, the practice developed of periodically exchanging prisoners of war during the conflict in which they were captured. This practice still prevailed during the Civil War, although it broke down repeatedly. Ould and Ludlow were, respectively, the Confederate and Union agents for concluding such exchanges, and were the one continuing channel of communication between the two sides. See generally William, Hesseltine, Civil War Prisons (1930)Google Scholar.

27 Seddon to Ould (June 24, 1863), reprinted in Hartigan, supra note 10, at 120.

28 Id. at 123–24.

29 William, Hanchett, The Happiest Day of His Life , in Civil War Times Illustrated, Nov./Dec. 1995, at 76, 82 Google Scholar. The Confederate government believed that Lincoln had approved cavalry raids aimed at capturing or killing high Confederate officials. See William, Tidwell, James, Hall & David, Gaddy, Come Retribution 245–48 (1988)Google Scholar.

30 See Hartigan, supra note 10, at 22; cf. Nussbaum, supra note 1, at 227, 345 n.75.

31 See Frits, Kalshoven, Belligerent Reprisals 366 (1971)Google Scholar; Julius, Stone, Legal Controls of International Conflict 351–52 (1954)Google Scholar. For alternative views on the application of Kriegsraison in occupied Belgium during World War I, compare Eyal, Benvenisti, The International Law of Occupation 32–48 (1993)Google Scholar, with Barbara, Tuchman, The Guns of August 313–32 (1962)Google Scholar.

32 See, e.g., U.S. Dep’t of the Air Force, supra note 6; James, Bond, The Rules of Riot 65–68 (1974)Google Scholar; Stone, supra note 31, at 352; Denise, Bindschedler-Robert, Problems of the Law of Armed Conflicts , in 1 A Treatise on International Criminal Law 295, 305–06 (Cherif Bassiouni, M. & Ved, Nanda eds., 1973)Google Scholar. In this respect the doctrine of military necessity is to be distinguished from absolute necessity or force majeure, either of which might, in principle, excuse violation of any positive rule of international law, see Bin, Cheng, General Principles of Law as Applied by International Courts and Tribunals 71 (1953)Google Scholar. Force majeure includes only extraneous events that make performance impossible, while necessity always involves a deliberate choice to disregard a rule. See 1 Schwarzenberger, supra note 6, at 642 (1957). Absolute necessity is also to be distinguished from military necessity in that the existence of the state, not merely military victory, must be in peril before the former doctrine will apply, see Bin Cheng, supra, at 71. Cf. 1 Schwarzenberger, supra, at 538–41. This very high standard has rarely, if ever, been met. It is not clear whether absolute necessity would excuse violations of the laws and customs of war. STONE, supra note 31, at 352–53, suggests that it might. Query the impact of absolute necessity on obligations that are jus cogens; most of the authorities on absolute necessity predate development of the doctrine of jus cogens.

33 See David, Herbert Donald, Lincoln 82–83 (1995)Google Scholar; Michael, Burlingame, The Inner World of Abraham Lincoln 7 (1994)Google Scholar; Daniel, Howe, Why Abraham Lincoln Was a Whig , 16 J. Abraham Lincoln Assn 27 (1995)Google Scholar.

34 John, Frank, Lincoln as a Lawyer 144, 146 (Americana House 1991) (1961)Google Scholar.

35 Id. at 144.

36 Id. at 150–51.

37 Id. at 150.

38 Carl von Clausewitz, on War 87 (Michael Howard & Peter Paret ed. and trans., 1976) (1832).

39 See, e.g., First Inaugural Address (Mar. 4, 1861), in Lincoln, supra note 22, at 215; Speech at Cincinnati, Ohio (Sept. 17, 1859), in id. at 59–61.

40 See Donald, supra note 33, at 302–03.

41 Phillip, S. Paludan, The Presidency of Abraham Lincoln 79, 75 (1994)Google Scholar.

42 “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.” U.S. Const. Art. II, §3.

43 “I think the constitution invests its commander-in-chief, with the law of war, in time of war.” Letter, Lincoln to James Conkling (Aug. 26, 1863), in Lincoln, supra note 22, at 495, 497. Cf. Louis Henkin, Foreign Affairs and the Constitution 52 (1972): “He [the President] can exercise the rights which the state-of-war accords the United States under international law in regard to the enemy as well as to neutrals.”

44 See James, Mcpherson, Battle Cry of Freedom 352–53 (1988)Google Scholar; Stephen, Oates, With Malice Toward None 280–83 (New American Library 1978) (1977)Google Scholar.

45 See Letters, Lincoln to John C Fremont (Sept. 2 and 11, 1861), in Lincoln, supra note 22, at 266–67. As modified, Fremont’s proclamation affected only property and slaves directly used in the Confederate war effort. See Mcpherson, supra note 44, at 353.

46 Letter, Lincoln to Orville, H. Browning (Sept. 22, 1861)Google Scholar, in Lincoln, supra note 22, at 268–69 (emphasis in original).

47 Preliminary Emancipation Proclamation (Sept. 22, 1862), in id. at 368. Concern over charges that Lincoln was usurping legislative functions, a concern he had denounced to Senator Browning a year earlier, may account for the President’s decision to include lengthy statutory quotations in the proclamation, see id. at 369–70.

48 See Martin, Herz, The Prestige Press and the Christmas Bombing, 1972, at 6–12 (1980)Google Scholar.

49 See id. at 23 (air bases, rail yards and shipyards, antiaircraft sites, communications facilities, vehicle repair shops, warehouses, power plants, railway bridges, truck parks and radar installations); James, Mccarthy & George, Allison, Linebacker, II: A View From the Rock 41–42, 97–98, 101, 122–23Google Scholar (U.S. Air Force Southeast Asia Monograph Series Vol. VI, monograph 8, 1979) (airfields, surface-to-air missile storage sites, petroleum product storage, railroad yards, transformer station).

50 Mccarthy & Allison, supra note 49, at 1.

51 Hamilton, DeSaussure & Robert, Glasser, Air Warfare—Christmas 1972 , in Law and Responsibility in Warfare 119, 133 (Peter, D. Trooboff ed., 1975)Google Scholar.

52 Id. at 137.

53 McPherson, supra note 10, at 40.

54 See text at note 46 supra.

55 Letter, Lincoln to Joseph, J. Reynolds (Jan. 20, 1865)Google Scholar, in Lincoln, supra note 22, at 667, 668 (emphasis in original). A provost-marshal is “the head of the military police of any post, camp, city or other place in military occupation, or district under the reign of martial law.” Black’s Law Dictionary 1391 (4th ed. 1951).

56 Letter, Lincoln to Reynolds, supra note 55, at 668.

57 As Lincoln was aware, military trial and punishment for certain war-related offenses are generally regarded as justified by military necessity. Such offenses include espionage and sabotage, see, e.g., Ex parte Quirin, 317 U.S. 1 (1942); Lieber Code, supra note 4, Art. 88; war crimes (i.e., violations of the laws and customs of war, such as the murder of civilians and prisoners of war), see, e.g., In re Yamashita, 327 U.S. 1 (1946); Trial of Captain Henry Wirz (U.S. Mil. Comm’n 1866), in 1 The Law of War: A Documentary History 783 (Leon Friedman ed., 1972); cf. Lieber Code, supra, Art. 59 (“A prisoner of war remains answerable for his crimes committed against the captor’s army and people, committed before he was captured . . .”); and assassination. The assassins of President Lincoln, for example, were tried and convicted by a military commission on the theory that they had acted to aid the Confederate government during the Civil War. See U.S. War Department, General Court-Martial Orders No. 356 (July 5, 1865), in 6 A Compilation of the Messages and Papers of the Presidents 342–48 (James, Richardson ed., 1907)Google Scholar.

In the war with Mexico of 1846–1848, General Winfield Scott initiated the practice of using military commissions to try offenses against the law of war. See Jack Bauer, K., The Mexican War 253, 326–27 (1974)Google Scholar. “Military commissions,” General Halleck wrote, “differ from courts-martial in that the latter are established by statute and have only such jurisdiction as the law confers, while the former are established by the President, by virtue of his war power as commander-in-chief, and have jurisdiction in cases arising under the laws of war.” In addition, “courts-martial exist in peace and war, but military commissions are war courts and can exist only in time of war.” Henry, W. Halleck, Military Tribunals and Their Jurisdiction , Mil. L. Rev. Bicentennial Issue 15, 21 (1975)Google Scholar. General Halleck was Commanding General of the U.S. Army in 1862–1864; the article quoted was probably written in 1864. See id. at 15 note. The United States continued to use military commissions through World War II to try offenses against the law of war. See In re Yamashita and Ex parte Quirin, supra. The 1949 Geneva Conventions, however, require that prisoners of war be tried by the same courts, using the same procedures, as try members of the detaining power’s own armed forces. See Convention on Treatment of Prisoners of War, Aug. 12, 1949, Art. 102, 6 UST 3316, 75 UNTS 135. This requirement probably precludes the use of military commissions to try members of the enemy’s armed forces.

58 See McPherson, supra note 44, at 437. This action provided short-term financial relief to the Confederate war effort. By confiscating private property of enemy civilians, however, it also set a precedent that Lincoln turned against the Confederacy in the Emancipation Proclamation.

59 Annual Message to Congress (Dec. 3, 1861), in Lincoln, supra note 22, at 279, 287.

60 See Hyman, supra note 8, at 199–202.

61 Regulations, supra note 18, Art. 43. For extended commentary on this obligation, see Benvenisti, supra note 31.

62 See The Charter of the United Nations: A Commentary 588 (Bruno, Simma ed., 1994)Google Scholar.

63 See Louis, Fisher, Presidential War Power 153–54 (1995)Google Scholar.

64 See Ben, Barber, U.S. officers concede knowing of atrocities , Wash. Times, July 27, 1997, at A1 Google Scholar. “ ‘There was constant pressure from the looters and thieves,’ Gen. Zinni said. ‘They attempted to snatch weapons and food. We had to be constantly on the alert. At night they came over the walls to steal.’ “ Id. at A10. Lt. General Tony Zinni had been director of operations of the UN force in Somalia. Cf. The Charter of the United Nations, supra note 62, at 586 (“UNOSOM soldiers also killed civilians. All this led to a very serious political controversy over the mandate of the force.”).

65 See Bradley, Graham & Rick, Atkinson, NATO Remains Uncertain About Future Pursuit of Suspected War Criminals , Wash. Post, July 19, 1997, at A16 Google Scholar; Bradley, Graham, U.S. Push Against Bosnian War Criminals Urged , Wash. Post, July 16, 1997, at A15 Google Scholar; Edward, Cody & Jonathan, C. Randal, NATO Moves on War Crimes Suspects , Wash. Post, July 11, 1997, at A1 Google Scholar; John, F. Harris & Dana, Priest, Alliance Gets Aggressive on Arrests Google Scholar, id.

66 A U.S. Department of Defense spokesman has already stated that the NATO Stabilization Force in Bosnia is authorized to use “whatever means they need to” in order to detain indicted war criminals. See News Briefing by Assistant Secretary of Defense Kenneth, Bacon, Dep’t of Defense News Release (June 11, 1996)Google Scholar.

67 See Richard, S. Brownlee, Gray Ghosts of the Confederacy 164 (U. of Missouri 1984) (1958)Google Scholar.

68 Letter, Lincoln to Samuel, R. Curtis (Jan. 2, 1863)Google Scholar, in Lincoln, supra note 22, at 426, 426–27.

69 Id. at 427. General Curtis responded to the President’s unsubtle hint and revoked the exile order. See Brownlee, supra note 67, at 164.

70 Letter, Lincoln to Curtis, supra note 68, at 427. Almost a year later, Lincoln received a petition from several citizens of Saint Louis to restore McPheeters “to all his ecclesiastical rights.” Clearly irritated, and suspecting that he was being drawn into an internal dispute between members of the congregation, he replied by quoting his directions to General Curtis, and went on to write that he had “never interfered, nor thought of interfering, as to who shall preach in any church . . . . If any one is so interfering, by color of my authority, I would like to have it specifically made known to me.” Letter, Lincoln to Oliver D. Filley (Dec. 22, 1863), in Lincoln, supra note 22, at 562, 563.

71 Endorsement Concerning New Orleans Churches (Mar. 15, 1864), in id. at 580.

72 See, e.g., Mark, Neely, The Last Best Hope Of Earth 149 (1993)Google Scholar.

73 Proclamation Calling Militia and Convening Congress (Apr. 15, 1861), in LINCOLN, supra note 22, at 232.

74 Lincoln, order to Edwin, M. Stanton (July 22, 1862)Google Scholar, in id. at 342, 342–43.

75 Letter, Lincoln to James, C. Conkling (Aug. 26, 1863)Google Scholar, in id. at 495, 497 (emphasis added).

76 See Report of the U.S. Agent, 6 Papers Relating to the Treaty of Washington 52–53 (1874). The widely recognized position of cotton in the Southern economy had also led even conservative Union generals like McClellan to approve its destruction. See GRIMSLEY, supra note 10, at 55–56.

77 See Cox’s Case (U.S. v. Gr. Brit.), 6 Papers Relating to the Treaty of Washington, supra note 76, at 51.

78 See Smyth’s Case (U.S. v. Gr. Brit.), id.

79 Article 2 of the Hague Convention [IX] on Bombardment by Naval Forces in Time of War, Oct. 18,1907, 36 Stat. 2351, reprinted in Armed Conflicts, supra note 2, at 811, retreated from Civil War practice by authorizing destruction only of “military or naval establishments, depots of arms or war materiel, workshops or plant which could be utilized for the needs of the hostile fleet or army.” Article 24(2) of the draft 1922/23 Hague Rules of Air Warfare were similarly restrictive of attacks against economic infrastructure, authorizing destruction only of’ ‘factories constituting important and well-known centres engaged in the manufacture of arms, ammunition or distinctively military supplies; [and] lines of communication or transportation used for military purposes.” Armed Conflicts, supra, at 207, 210. The Hague Rules never entered into force, and were disregarded by all sides in World War II. See, e.g., McDougal & Feliciano, supra note 6, at 640–52. The current state of the law is summarized in the official U.S. Air Force publication on the law of war as follows:

U.s. Dep’t of the air force, supra note 6, para. 5–3b(2) (citation omitted).

80 See McPherson, supra note 10, at 41–42.

81 See id. at 43–44.

82 See id. at 45–48.

83 Henri, Meyrowitz, The Principle of Superfluous Injury or Unnecessary Suffering , Int’l Rev. Red Cross, Mar.-Apr. 1994, at 98, 106–07 Google Scholar.

84 See Grimsley, supra note 10, at 222–25. After reviewing the historical evidence, Grimsley rejects characterizing the Civil War as a “total war” in the 20th-century sense.

5 See id. at 174–79, 198–99. The march of Sherman’s army through South Carolina was an exception. The average federal soldier regarded South Carolina as responsible for the war, and destruction of private houses was far more widespread than it had been in Georgia, or would later be in North Carolina. Id. at 201–02.

86 See text at note 56 supra. Even General Sherman, whose campaigns in Georgia and the Carolinas have become a byword for “hard,” destructive war, ordered that private homes were not to be molested:

Burke, Davis, Shermans March 31 (Vintage Books 1988) (1980)Google Scholar (quoting Sherman’s Field Orders, Nov. 14, 1864). Unfortunately, General Sherman did little to enforce this order, and may have correctly concluded that its enforcement would be impossible in a volunteer army of individualistic 19th-century Americans. Most of the looting and destruction of private homes on Sherman’s march was carried out by unofficial foraging parties. See Grimsley, supra note 10, at 191–93; Davis, supra, at 36–37. One of the weaknesses of the Lieber Code was that it did not deal with a commander’s responsibility for ensuring that his soldiers comply with the laws of war. The issue was not widely recognized until the war crimes trials following World War II. See, e.g., The High Command Case, 15 ILR 376, 384–92 (U.S. Mil. Trib. Nuremberg, 1948); In re Yamashita, 327 U.S. 1 (1946). Query whether Sherman would be responsible under contemporary concepts of command responsibility. Some of Sherman’s subordinate generals did punish looting in a few cases, see Davis, supra, at 42–43, and even Sherman himself made some efforts to prevent looting and return stolen property, id. at 189–90. During the night of February 17–18, 1865, when Columbia, South Carolina, was burned and looted, 370 looters were arrested and 30 wounded by military guards. On the other hand, in at least one incident General Sherman had direct knowledge of the destruction of an abandoned private home (it was set on fire as he left after having slept there) and took no action to punish those responsible, see id. at 142. For the current state of international law on this issue, see Hays Parks, W., Command Responsibility for War Crimes , Mil. L. Rev., Fall 1973, at 1 Google Scholar.

87 See Grimsley, supra note 10, at 179–80. Hunter claimed that the house had been burned in lawful retaliation for Letcher’s effort to incite guerrilla warfare in Hunter’s rear:

Report of Major General David Hunter (Aug. 8, 1864), in 37 War of the Rebellion: A Compilation of the Official Records of the Union and Confederate Armies, pt. 1, at 96, 97 (Robert Scott ed., ser. 1, 1891).

88 Telegram, Lincoln to Lt. General Grant (Aug. 14, 1864), in Lincoln, supra note 22, at 427, 428.

89 See Regulations, supra note 18, Art. 25; Convention Concerning Bombardment by Naval Forces in Time of War, supra note 79, Art. 1.

90 See Rules of Air Warfare, supra note 79, Art. 24(3).

91 See Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, opened for signature Dec. 12, 1977, Art. 52, 1125 UNTS 3, reprinted in Armed Conflicts, supra note 2, at 621.

92 See Robert, Futrell, The United States Air Force in Korea 1950–1953, at 666–69 (rev. ed. 1983)Google Scholar. The FEAF staff argued that the rice, most of which was destined for the enemy armed forces, was a legitimate military target, a position with respectable roots in the Lieber Code, supra note 4, Article 17: “War is not carried on by arms alone. It is lawful to starve the hostile belligerent, armed or unarmed, so that it leads to the speedier subjection of the enemy.”

93 See text at notes 48–50 supra.

94 See, e.g., In re Von Leeb (High Command Case), 15 ILR 376, 397 (U.S. Mil. Trib. Nuremberg, 1948); In re List (Hostages Trial), id. at 632, 646–47 (U.S. Mil. Trib. Nuremberg, 1948).

95 See Statement by President Bill Clinton (May 16, 1996), in New U.S. Mine Policy, Defense Issues No. 40.

96 See U.S. Dep’t of the Navy, The Commanders Handbook on the Law of Naval Operations, para. 6.2.5.5.2 (Naval Warfare Pub. No. 1–14M, 1995); FM 27–10, supra note 6, para. S.a.; Lieber Code, supra note 4, Art. 14.

97 See Department of Defense Report to Congress on the Conduct of the Persian Gulf War—Appendix on the Role of the Law of War, 31 ILM 612, 636–37 (1992); Regulations, supra note 18, Art. 23(g).