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Justices militaires et guerres mondiales

 | 
Jean-Marc Berlière
, 
Jonas Campion
, 
Luigi Lacchè
, 
et al.

U.S. Military Justice in the European Theater of Operations (ETO), World War II

Judging crimes, targeting populations and sentencing patterns

J. Robert Lilly

Texte intégral

‘The law is a funny thing’
United States v. Private Wesley Edmonds.

1Unlike today when an embedded press in military conflicts and communications technology makes it relatively easy for the public to know about serious crimes committed by U.S. soldiers whether against innocents or their own, this was not the situation during World War Two (Farrell 2007: 8; Barrouquere 2007: A3; Zielbauer 2007: A 11; Shanker, Tavernise 2006: A1 & A8; Cave 2007: A 12; Fernandez 2007: A 16; Cowell 2006: A 10; Marshall 2006: A 5; Dwyer, Worth 2006: A 1; Goodstein 2006: A 13; Jehl, Schmitt 2005: A 1 and A 9; Thompson 2009; Risen 2009a, 2009b). At that time soldiers’ criminal behavior was more often than not ignored by the U.S. press and treated by the military as confidential or secret information. The U.S. Army’s Judge Advocate General’s records for the European Theater of Operations, WW II, discovered in the early 1990’s (Cline 1993: 7), nonetheless, contains details and a panoramic view of the serious crimes prosecuted against U.S. soldiers, 1941-1945 (History of the Branch Office of the Judge Advocate General 1942-1946, hereafter HBO). This chapter extends previous analyses of these records and provides a picture of the crimes committed by U. S soldiers and the punishments they received (Lilly 1996; Lilly and Thomson 1997; Lilly and Marshall 2000; Lilly 2003, 2004a, 2004b, 2007). Before presenting the findings it is important to have some understanding of the domestic context where the soldiers originated and served. We begin with racial segregation and miscegenation laws in the late 19th century.

1. Context

1.1. Segregation

2At the end of the federal government’s reconstruction efforts [1865-1877] to reorganize the states that had seceded from the Union during the Civil War, southern white authorities were determined to end northern and black citizen’s participation in the region’s affairs. This lead to the development of laws and customs designed by white authorities to given institutionalized advantages to whites and disadvantages to blacks. This ear and its laws, often referred to as ‘Jim Crow’, affected every aspect of public and private life. Blacks were barred from basic civil rights including voting, holding public office, and jury service. Beyond these denials of civil rights were laws requiring separation from whites. This applied to transportation facilities; waiting rooms; and public and private facilities open to the public including churches, schools, hospitals, prisons, parks, toilets, drinking fountains, restaurants, stairways, movie theaters, entrance and exits, cemeteries and phone booths (Franklin 1956: 8).

3There were exceptions to the restrictions of segregation, but they were few and the military was not included. It was one of the most rigidly segregated institutions in the United States. In 1940 it had only five black officers and 4,000 black troops. During World War II – as in World War I – the military required separate training grounds, and eating and sleeping facilities for each race. Blacks were almost assuredly under the command of white southern officers. Its evaluations and images of black troops during World War II held the idea that they were intellectually and biologically best suited for non-combat service units. Exceptions to this interpretation and accompanying policies did exist but they were few and far between. In all likelihood the domestic experiences of black soldiers involved racism and discrimination, some of which was so intense that it created riots and other disturbances in cities (Harlem, Mobile, Los Angeles and Detroit) and in and around military training camps.

2. Miscegenation

4Sexual racism was an insidious form of segregation during World War II that had its legal origins much earlier during America’s colonial days. Whereas thereafter these laws developed unevenly across the United States they shared a core emphasis that forbade sexual intercourse and intermarriage in order to maintain the purity of the white race and to keep them dominate over blacks. In practice miscegenation prohibited black men from having sexual intercourse with white women, but it did not attempt to stop the opposite – white men sexually exploiting black females.

5This interpretation of proper sexual contact between blacks and whites was still on the law books of many states during World War II, and it continued to exist for more than twenty-years after the end of the war. They endorsed the ancient stereotype that blacks, especially males, were more lustful and had greater sexual prowess than white men and women. In the U.S. Army’s first rape case in England (1942) involving a black soldier and a white women, for instance, the military court had questions about the accused’s penis and whether its size might account for the victim’s injuries. The query was consistent with the social and legal context surrounding U.S. soldiers during World War II. The U.S. military’s responses to crimes committed by its soldiers is consistent with the theory that the applications of criminal punishment are in essence efforts to repair damage crime has inflected on society’s images of social reality. During World War II the cultural tapestry of the United States placed great emphasis – socially and legally – on segregation and sexual racism.

3. Race and Soldiers Tried

6During the time the ETO Branch Office was opened, 19,401 general courts-martial records were received involving charges 22,214 individuals who were tried, with 2,123 (9.5%) of them acquitted. In addition, 307 had their convictions overturned by the Reviewing Authority. An additional 2,797 individuals received sentences that were less than what the Reviewing Authority would have approved for general courts-martial. For instance, 977 officers received sentences that did not involve actual dismissal. In total 16,987 (76.5%) received approved sentences, which included death, dismissal or dishonorable discharge. Those tried included officers, civilians, merchant seamen, general prisoners, and prisoners of war. This information is presented in Table 1.

Table 1: Status of the accused

No. Accused

% Total

Status

1,737

7.8

Officers

20,377

91.7

Enlisted Personnel

50

.2

General Prisoners

20

.09

Civilians

8

.03

Merchant Seamen

3

.01

American Red Cross Personnel

7The crimes that lead to general courts-martial include nine broad categories of offenses. In total black and white soldiers together – these included absences (31.2%); disobeying constituted authority (20.3%); violence (13.8%); abuse of military property (10.8%); dishonesty (9.1%); miscellaneous (4.5%); sentinel (3.6%); drunk (3.4%) and sex offenses (3.2%).

8A much different pattern of offenses appears when each category is examined by race and it must be kept in mind when reading these statistics that approximately 90% of the troops were white whereas black soldiers represented only 10%. Absences, which contained the largest number of recorded offenders, 11,252 (31.2%), had a radial distribution of 85.8% whites and 14.2% black. Sex offenses with the least number of recorded offenders (1,176), contained 57.7% whites and 42.3% black soldiers. Neither absences nor sex offenses reflected white and black soldiers along the 90% and 10% distribution of the troops (see Table 2). For each category of crime, white soldiers are underrepresented except for being drunk. For this offense white soldiers were slightly overrepresented at 91.1%.

Table 2: General Nature of Offenses

Table 2: General Nature of Offenses

9Black soldiers were almost without exception overrepresented, sometimes dramatically. According to the HBO the top offense for black soldiers involved sex where as sexual offenses for white soldiers were ranked last.

4. Race and Sentencing Soldiers

4.1. Death Sentences

10The over representation of black soldiers at trial appears throughout the sentencing phase of military justice in the ETO. According to HBO accounts, the total number death sentences under-represents whites and over-represents (HBO, 1946:10) (See Table 3).

Table 3: Death Sentences in the UK, France and Germany

Table 3: Death Sentences in the UK, France and Germany

11Of the total number (443) of soldiers sentenced to death, 245 (55.3%) were white whereas 198 (44.7%) were black. This pattern of is found for each capital offense. White soldiers convicted for murder, for example, received 32.9% of the death sentences compared to 67.1% for the black troopers. A similar disproportional distribution of death sentences exists for the crime of murder and rape. Here white soldiers were given death sentences 38.9% of the time compared to black soldiers who were sentenced to death 61.1%. Death sentences for rape had the same pattern with whites receiving it 35.1% of the time compared to 64.9% for black soldiers.

12The importance and strength of context on the military justice experienced by U.S. soldiers in the ETO becomes clearer when the patterns of punishments for rape – for example – are compared for the United Kingdom, France and Germany. Put simply, as the context of the war shifted so did some aspects of the patterns of punishment. They were consistent with what would be expected in a sexually racist and segregated society’s military, but they were not proportional to the racial distribution of the population. In each of the settings – UK, France and Germany – black soldiers received death sentences for rape greater than in proportion to their membership in the U.S. Army, or in the U.S. population. White soldiers received death sentences less than in proportion to their membership in the army and U.S. population. This information is presented in Table 4 below:

Table 4: Disproportionate Death Sentences in the UK, France and Germany

Race

UK

France

Germany

Black

91%

92%

46%

White

9%

8%

33%

Unknown

-

-

20%

American Indian

-

-

1%

Total

100%

100%

100%

13The death sentences for the black and white soldiers in the United Kingdom were almost exactly the opposite of what would be expected based on the proportion of each in the population of the United States. A dramatic difference was found in the percentages of death sentences given for the rapes in Germany. In the United Kingdom and France, blacks had received more than 90% of the death sentences – they represented only 10% of the Army. In Germany, they received 46% of the death sentences, which represents an approximate decrease of 44% compared to the percentage of death penalty sentences they had been given in the United Kingdom and France. Yet, the figure of 46% was still 36% greater than their membership in the military, and in the U.S. population.

14The percentage of white soldiers receiving the death penalty for rape in the United Kingdom and France was 9% and 8% respectively. These figures represented a disproportionate under-representation of more than 80%. In Germany the death penalty sentence for white offenders increased to 33%, an approximate increase over the same sentence in the United Kingdom and France of 23%.

4.2. Life Sentences

15It is important to note that when compared to the proportion of blacks receiving life sentences in the United Kingdom (52%), blacks in France saw a dramatic increase from 25% to 78%, and then a decrease of almost 30 percentage points in Germany (49%). This information is found in Table 5.

Table 5: Disproportionate Life Sentences in the UK, France and Germany

Race

UK

France

Germany

Black

52%

78%

49%

White

40%

19%

42%

Unknown

8%

3%

8%

American Indian

-

-

1%

Total

100%

100%

100%

16Correspondingly, the proportion of whites receiving life sentences in the United Kingdom was underrepresented at 40%, and then decreased to less than half of this figure at 19% in France. In Germany, whites were given 42% of the total life sentences. This number was only 2 percentage points greater than what was found in the United Kingdom for white soldiers.

17The paramount question, at least in terms of math, is not proportionality compared to US population or within the military, but whether sentence ‘disparity’ existed when blacks and whites were ‘tried’. In other words, did blacks get the death sentences more often than whites when both were tried for the same offence? This question is addressed in Table 6.

Table 6: Disparity and Percent of Death Sentences in the UK, France and Germany

Race

UK

France

Germany

Black

43%

44%

23%

White

9%

18%

20%

Unknown

-

-

43%

American Indian

-

-

33%

18There is no doubt that sentence disparity existed for soldiers tried for rape in the United Kingdom and France. The picture is less clear for Germany. When black soldiers were tried for rape in the UK and France they received the death penalty 43% and 44% of the time, respectively. White soldiers, by comparison received the death penalty only 9% of the time in the UK. This percentage doubled to 18% in France.

19The large percentage of Unknowns who received the death penalty in Germany made it hazardous, if not impossible, to have clear conclusions on sentencing disparity according to race. However, it is important to note with caution that black soldiers appear to have received death sentences for rape in Germany more often than white soldiers.

20Sentences received following convictions were not always the sentences that the soldiers actually served. Sentences could be reduced. In the following section we examine the patterns of reduced sentences. It was expected that the reductions of sentences would follow race – the sentences for white offenders were expected to be reduced disproportionately more often than for black offenders.

4.3. Reduced Life Sentences

21Each capital case was reviewed by the JAG’s Board of Review and in some instances the original sentences were reduced. The data on the proportionality of the reduction of life sentences is presented in Table 7 below:

Table 7: Disproportionate Reduction of Life Sentences in the UK, France and Germany

Race

UK

France

Germany

Black

37.5%

-

10%

White

37.5%

100%

48%

Unknown

25%

-

42%

American Indian

-

-

-

Total

100%

100%

100%

22The percentages here are based on the total number of sentences that were reduced, not on the number of sentences given. For example, in the United Kingdom, 8 sentences were reduced, 3 for blacks (37.5%), 3 for whites 37.5%), and 2 for Unknown (25%). These findings however are somewhat ambiguous because of the small numbers involved – they should be used with caution.

23In the United Kingdom, the reductions for black and white soldiers were the same at 37.5% each. This figure is higher than would be expected based on the proportion of blacks in the military. The reduction of the life sentences in France is, at first glance, curious, when it is compared to the pattern of reduced sentences in the United Kingdom. The picture of reduced sentences in France is consistent with what would be expected in an army segregated by race. It is also consistent with the argument that context matters. No blacks had their life sentences reduced for rape in France – 100% of the reductions went to whites. However, this figure should be interpreted very carefully because what it means, in fact, is that only 1 white soldier had his life sentence reduce in France. In other words, 78% of the life sentences in France went to blacks, and none of them received a reduced sentence.

24By comparison, white soldiers received 19% of the life sentences in France, and only one of them received a reduced sentence (See Table 5). The overall absence of reductions in life sentences in France is, however stretched mathematically, consistent with racist ideology – one white soldier got his life sentence reduced. More important was the fact that France was the battlefront where military discipline could ill afford a reputation for reducing sentences. Alternatively, the scarcity of reductions for life sentences may have been indicative of 1) a lack of uniformity and fairness in sentencing among commanders, and 2) commanders’ lack of interest in getting offenders returned to active service. These ideas will be explored later in this chapter.

25Life sentence reductions in Germany had an even greater percentage (42% for the unknown than in the United Kingdom 25%). This made it highly problematic to reach any meaningful or insightful conclusion about a pattern of reductions for life sentences. Without considering the potential impact of the racial composition of the unknowns, it appears that blacks received only 10% of the total reductions for life sentences, compared to whites – they received 48% of the reductions.

26The percentage of life sentence reductions per race in the United Kingdom, France and Germany revealed clearer findings about sentence disparity. This information is presented in Table 8.

Table 8: Disparity in the Reduction of Life Sentences in the UK, France and Germany

Race

UK

France

Germany

Black

36%

4%

7%

White

88%

100%

33%

Unknown

-

-

43%

American Indian

-

-

-

27The reader is reminded that in this table the numbers are not based on overall proportionality. Rather, they are based on the question of whether as a group convicted blacks had their sentences reduced more or less than convicted white soldiers. In other words, the above figures address an intra race question – each group represents 100%.

28Of the 10 black soldiers who were sentenced to death in the United Kingdom, only 3 of them had their sentences reduced. By comparison 88% of the white soldiers convicted of rape and sentenced to death in the UK had their sentences reduced. This pattern was also found in Germany. But again, the percentage (43%) of unknown who had their sentences reduced makes it difficult to be very conclusive. It does appear nevertheless, that the disparity in sentence reductions by race held.

4.4. Reduced Death Sentences

29The pattern of disparity in the death sentences for convicted black and white rapists in the UK and France was reversed for reduced death sentences. This information is presented in Table 9 below:

Table 9: Disparity in the Reductions of Death Sentences in the UK, France and Germany

Race

UK

France

Germany

Black

100%

81%

100%

White

-

19%

100%

Unknown

-

-

100%

American Indian

-

-

100%

Total

100%

100%

100%

30Black rapists were given 100% of the reductions of death sentences in the United Kingdom. This does not mean that no Blacks were executed for rapes in the UK. Rather, it means that Blacks received 100% of the total number of reductions for death that were given by the military. Whites, on the other hand, received no death sentence reductions for rapes.

31These two patterns were also found for death sentences given in France. Blacks received 81% of the reductions for death sentences there – whites were granted the remainder of the reductions at 19%. It appears that the presence and influence of racist ideology on the reduction of sentences for rape stopped, or at least waned, when it came to reconsidering death sentences in the UK and France.

32An alternative explanation suggests that the stereotyped ‘fanciful image’ of French women acted as a counterweight to racial prejudices, especially when it came to a question of whether to execute a black soldier. In other words, were the lives of black American soldiers to be ended for having raped French women who already had a tainted reputation for sexual looseness with blacks following World War I, and who may have recently collaborated with the German occupiers?

33It is clear that at the level of reducing death sentences for rape, the military was more lenient with black rapists in the United Kingdom and in France, than it was with white assailants. As will be discussed shortly, the patterns of racial disparity found thus far persisted unabated at the death gallows.

34Interpreting the patterns of death sentence reductions in Germany is somewhat less problematic. All death sentences for rape in Germany were reduced – there were no executions for rape in Germany.

4.5. Executions

35Racial disparity was present at the gallows. This information is presented in Table 10 below:

Table 10: Executions by Race and Country for Rape

Race

UK

France

Germany

Black

56%

86%

-

White

28%

14%

-

Latino*

16%

-

-

Total

100%

100%

100%

* Spanish American

36In the United Kingdom, 56% of the soldiers executed for rape were blacks, compared to only 28% for whites. One Latino, or Spanish American, named Aniceto Martinez, 22 years old and from Jeaniez, New Mexico and single, was executed for rape in the UK. He was put into a separate category because his trial transcript was incomplete in two respects. It did not indicate his unit other than ‘Headquarters Detachment’. This information was inadequate for determining if he was assigned to a black or white unit. Neither did his records specifically state whether he was classified as black or white. However, the record did indicate that at one time he was a member of the 202nd M.P. [Military Police] Co., which strongly suggests he was in a white unit be cause the Army had few black M.P units. If he was classified as white, the percentage of white soldiers executed would increase to 44%, a figure that is 45% below proportional representation. It is interesting that whereas black and white soldiers who raped in Germany were sentenced to death, none were executed there while at the same time the U.S. Army was still executing its own, or paying someone else to do it.

5. Explaining Military Justice in the ETO: Discussion

5.1. Rejection of racial ideology

37Exploring why the U.S. military refused to execute any of its soldiers for raping Germans provides a window for examining several factors that collectively provide insight into the patterns of punishment that developed in the changing context of the ETO, 1942-1946. One possibility involves the notion that the military had come to realize that there were no real or significant differences between black and white soldiers and/or rapists. Perhaps the military wished to set an example that gave witness to the ugliness of its racist ideology, especially in view of how the Nazi’s had practiced it in Germany. Perhaps it was concluded that there was little or any value to hang more blacks than whites. Or, for that matter, to hang any more soldiers at all.

5.2. Joining Europe

38The latter possibility would have been consistent with the execution policies of other countries of Europe. Many of them, if not all, had more lenient sentences for rape than the US military. England, for instance, had abolished the death penalty for rape in the late 19th century. Evidence supporting this interpretation is found in the Branch Office history. Its author’s state: ‘[B]ut critics also point to the more lenient sentences imposable for rape by the civil law in the other countries of Europe.’ (HBO 1945: 248).

5.3. Morale Problem

39It is also possible that the U.S. military did not want to risk discouraging its soldiers in Germany or lowering their morale by telling them through various publications, including the newspaper Stars and Stripes, morning reports and orders read aloud at formations, that it had executed loyal and long-fighting fellow troopers for raping the enemy’s women.

40News about the execution of American soldiers abroad seldom appeared in domestic newspapers. One misleading exception appeared during the 1944 Christmas holiday season. On Dec. 28th an Associated Press report from Paris was published on the front page of the New York Times. It stated that since D-Day – 6 June – not a single ‘American soldier in France had been executed for cowardice’ (New York Times 1944: 1). What the news story did not tell was that General Eisenhower had already approved scores of executions including his recent approval for the execution of Private Eddie D. Slovik for the crime of desertion. As American death penalty expert Watt Espy insightfully explained in 1992: ‘At that time we were making war heroes in the newspapers, executing American soldiers was not good press’ (Lilly 1992a).

5.4. Hatred of Germans

41This is an especially intriguing possibility, wrought as it is with ample doses of wartime and postwar propaganda that portrayed the Germans as Godless heathen and quite suitable targets for contempt, revenge and neglect. The argument has been made that the commanding general, Dwight D. Eisenhower, hated Germans so much that he was part of a policy that actively prevented available food to be distributed to German prisoners of war, thus causing the death of hundreds of thousands of unarmed soldiers and civilians. It has been claimed that upwards of a million people died because of various food and health-related neglects that Eisenhower had a hand in.

42Journalist James Bacque’s ‘Other Loses: The Shocking Truth Behind the Mass Deaths of Disarmed German Soldiers and Civilians Under General Eisenhower’s Command’, was called the most controversial and hotly debated book of 1991. After its initial 1989 publication it was the subject of a 1990 international conference that was sponsored by the Eisenhower Center at the University of New Orleans. At that time, Stephen Ambrose, one of the most successful historians to popularize World War II for millions of Americans – directed the Center. Two years later he co-edited a volume of the conference’s papers that claimed to assess Bacque‘s troubling assertion (Bischof and Ambrose 1991).

43Curiously, none of the contributors addressed whether Eisenhower had the power, influence, motivation and resources necessary to effectuate Bacque’s thesis. The failure to execute any U.S. soldiers for raping German women would be consistent with Eisenhower’s alleged hatred of Germans. It must be pointed out in fairness to Eisenhower that at war’s end many influential and powerful Americans, including President Roosevelt, went on record stating that they wanted to see the Germany military and its citizens punished. President Roosevelt, in fact, said he wanted to castrate them (PBS 2003).

5.5. Spoils of War

44It is also possible that the failure to execute American soldiers for raping German women was an expression of any number of the explanations for wartime rape. From the HBO’s official account of its birth and work, we know that ETO soldiers were executed in the UK and France for raping either allied nationals or females who had been under German occupation (HBO 1945, Appendix 83: 557-617). But the German rape victims differed from these two groups – they were the enemy’s women. Perhaps when the hard choice of executing American soldiers for raping them came, the collective command structure of the US Army gave a nod and a wink.

5.6. Prosecutions too Difficult

45The acknowledged difficulties of finding witnesses and perpetrators after battles may have contributed to the failure of the military to execute American soldiers who raped German women. Perhaps the Army therefore found it unreasonable or embarrassingly difficult to justify executing only the soldiers who were convicted, knowing full well that many other soldiers got away with rape. This problem is discussed in the JAG’s history in Chapter XXX – Sex Offenses. It said:

46‘Inability sufficiently to identify the attackers, especially during the disordered break-through periods, was, of course, a principal reason for the failure to try many of the alleged offenders.’ (HBO 1945: 249).

47A related problem was what to do with the large number of soldiers – more than 10,000 – who were convicted of crimes that could result in incarceration (HBO 1945: 4). Some commanders wanted the soldiers to be sent to federal prisons in the United States, while others wanted them to be sent to the military’s Disciplinary Training Centers, a position supported by some of the JAG. The problem was too many American prisoners.

5.7. Other, More Important Issues

48Perhaps, as Ambrose and his colleagues argued in their spirited defense of the accusation that General Eisenhower was party to letting German POWs die for lack of food and sanitary living conditions, the military had many other, more pressing issues to worry about than its rapists. The world war certainly was not over, notably in the Pacific Theater. The conditions in Germany were nearly chaotic and catastrophically disorganized. Perhaps executing American soldiers under these conditions was a last, lingering dirty detail, too insignificant to matter in the larger scheme of things.

5.8. Symbolic Expression of Strength

49According to one view of the nature of law, legal institutions serve primarily as a codification – or official reaffirmations – of definitions of social reality developed within a given social context (Ball 1979). The purpose of punishment or of legal redress generally, is construed as the reparation of social reality. Punishment, therefore, is a process by which given definitions, or views of the social world, are reaffirmed. It is not applied willy-nilly. Rather, historically it has been applied according to principles of justice that require that some people be held responsible and punished for offenses while others are not.

50Consistent with this perspective is the fact that at times when societies have a particularly strong sense of solidarity and moral strength, crimes are forgiven. Various forms of absolution repair the harm done. Some of the features of the execution of Christ are particularly good examples of this logic.

51Perhaps the lack of executions for rapes in Germany is inconsistent only at first glance. Germany, unlike the United Kingdom and France, was not an entity that the military had to appease, or impress with messages about any subject, especially its own attitudes towards its misbehaving soldiers. The Army had had many opportunities in Germany to have public hangings, replete with plenty of innocent victims and interested spectators, but it did not do so. Put simply, the rape of German women was not worth taking the life of one American soldier. To do so would not repair any sense of harm that had been done to, or by, any U.S. Army personnel, or by juxtaposition, the United States. Perhaps Captain Ted Kadin was right – they were ‘just Germans’ (Lilly 1992b). There was little if any symbolic value to executing Americans for raping Germans. The symbolic value of executing U.S. soldiers for rapes in Germany was so low that they were in the end, ignored.

52Brigit Beck‘s analysis of rapes committed by the German Wehrmacht is consistent with the idea that one of the purposes of punishment is the reparation of social reality or social order. German soldiers who raped in France were punished harshly because they ‘severely damaged the reputation of the Wehrmacht and the trust of the French population in it.’ (Beck 2002).

5.9. Military Justice in Disarray?

53The possible explanations for the failure to execute Americans for raping Germans has thus far focused primarily on factors external to the Branch Office JAG. It would be myopic to neglect the fact that it operated under numerous handicaps. Some of these problems were matters of time, personnel shortages, over work, command influence and philosophical differences about fairness, punishment and clemency.

54The problematic nature of the Branch Office’s working conditions was likely less an impingement to the quality and integrity of its final dispositions of the Germany rape cases – or any other disposition it made – than other less tangible factors. The most important of these elements were questions about the legitimacy of the U.S. military, and the use of its courts as a means of discipline that can be throughout most of its history.

55During the U.S. colonial period, for example, professional soldiers were hated, especially the mercenary Hessians hired by the British. American by comparison chose to fights its revolutionary war with militia volunteers. This position was later reinforced by the U.S. government’s formative Federalist Papers, which made it clear that while a strong central government was needed to combat the chaos of an initial confederate government, a well-armed militia would be America’s fighting force, not a professional standing army. This is still the case. Throughout its history, U.S. armed forces have been manned by volunteers. Conscription or mass drafting of military personnel was saved for a few rare occasions, including WW II. Only after World War II did the U.S. create a standing army and a Department of Defense.

56Today after almost 75 years of a standing army the U.S. military is still not very popular. U.S. military services spend millions yearly in advertising not only to recruit new members, but also to bolster their institutional legitimacy. During the current Iraq/Afghanistan the U.S. Army has had difficulty meeting its monthly and annual draft quotas, a situation that changed in late 2008 and early 2009 as citizens and non-US citizens sought to enter it for income and health insurance after the domestic and international banking and credit crisis saw unemployment rates hit record levels. By the time this happen, the U.S. Army had already lowered its standards for acceptance to include more high school dropouts, applicants with lower scores on aptitude tests, and individuals who previously had been rejected because of weight and age restrictions, and some convicted felons (Alvarez 2007: A-1; Shanker, Rutenberg, Hulse 2006).

57A strong dimension of the problem of military legitimacy in U.S. history stems in large measure from its questionable record of seeking justice. The issue historically has been the question of the purpose of military justice. Civilian rules see military justice as extensions of civilian justice while historically career militarists view its courts as a means of discipline. Space limitations prevent a full discussion of this point here but suffice it to say that the historical record of intra-military injustices to its own members is long and deep.

58Most recently this has been reported in the US military responses to crimes committed against Iraq detainees at Abu-Ghraib and other places where the offenses – including approving torture – were attributed to almost entirely low-ranking soldiers. Meanwhile higher ranking military and civilian authorities’ including former Secretary of the Defense Donald Rumsfeld denied their involvement despite a bipartisan report by the U.S. Senate’s Armed Service Committee that made a strong case for bringing criminal charges against him and other Bush officials including his White House counsel Alberto Gonzales and David Addington, Vice President Cheney’s former chief of staff ([http://nytimes.com2008/12/18/opinion New York Times], December 18, 2008; Shane and Mazzetti, 2008; Levin, 2008 [http://levin.ssenate.gov/​newsroom/​release]).

6. Conclusion

59It was the hotly debated issues involving justice, clemency and excessive sentences that received public attention near the end and after of World War II. Just days after the war ended in May 1945, General Eisenhower received a letter from Undersecretary of the War, R.P. Patterson, informing him of mounting public criticism of military justice, some of which had reached the U.S. Senate. With the goal of improving military justice, it responded to the issues and by December 13, 1946, the Senate had its report from the Advisory Committee on Military Justice – also know as the Vanderbilt Report, named after the committee’s chair, Arthur T. Vanderbilt (Report of War Department Advisory committee on Military Justice 1946). Its efforts were unprecedented in United States military history. The report’s contents were based on numerous interviews, voluminous statistical studies, letters and the analysis of questionnaires and fully acknowledged that military justice contained unacceptable disparities and injustices that could not be tolerated any longer. By the early 1950’s, many of the Vanderbilt Committee’s recommendations had been implemented into military justice reforms. Since then the military justice system has continued to be modified to such an extent that it is nearly impossible to distinguish it from civilian criminal justice. One thing has not changed. The soldiers on the U.S. Army’s death row are today are overwhelmingly black. Perhaps Private Wesley Edmonds was correct: ‘The law is a funny thing’.

Bibliographie

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Table des illustrations

Titre Table 2: General Nature of Offenses
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Fichier image/jpeg, 348k
Titre Table 3: Death Sentences in the UK, France and Germany
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Fichier image/jpeg, 406k

Auteur

Regents Professor of Sociology/Criminology and Adjunct Professor of Law at Northern Kentucky University. His research interests include the pattern of capital crimes committed by U.S. soldiers during World War II, the “commercial-corrections complex,” juvenile delinquency, house arrest and electronic monitoring, criminal justice in the People’s Republic of China, the sociology of law, and criminological theory. He has published in Criminology, Crime & Delinquency, Social Problems, Legal Studies Forum, Northern Kentucky Law Review, Journal of Drug Issues, The New Scholar, Adolescence, Qualitative Sociology, Federal Probation, International Journal of Comparative and Applied Criminal Justice, Justice Quarterly, and The Howard Journal. He has coauthored several articles and book chapters with Richard A. Ball, and he is coauthor of House Arrest and Correctional Policy : Doing Time at Home (1988). In 2003 he published La face cachée des GI’s : les viols commis par des soldats américains en France, en Angleterre et en Allemagne pendant la Second Guerre mondiale, translated into Italian in 2004 and in English in 2007. The latter work is part of his extensive research on patterns of crimes and punishments experienced by U.S. soldiers in WWII in the European Theater of War. The Hidden Face of the Liberators, a madefor-TV documentary by Program 33 (Paris), was broadcast in Switzerland and France in March 2006 and was a finalist at the International Television Festival of Monte Carlo in 2007. He is currently coeditor of The Howard Journal of Criminal Justice

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