Innocence at war

INTRODUCTION Some years after the Civil War, General William Tecumseh Sherman sought to disabuse military cadets of any sentimental pretense about their future profession: “I’ve seen cities and homes in ashes. I’ve seen thousands of men lying on the ground, their dead faces looking up at the skies. I tell you, war is Hell!" Sherman’s famous maxim conveyed the essential element of war as violence, with death and destruction as its direct incidents. This unromanticized view is necessary to understand not only the fundamental character of military combat, but also a principal reason for granting a space for law in war. From the codes of chivalry and the just war tradition, to modern treaties such as the Hague and Geneva Conventions, the law of war has sought to diminish the human suffering that inevitably accompanies armed conflict. The brunt of war is often borne by the “innocent” - defined for present purposes as individuals who are not involved in the hostilities (a.k.a., “civilians” or “non combatants”), as well as supposed participants in combat who, in fact, are free of any wrongdoing. A primary cause of their suffering is the lack of full and reliable information due to the chaos of combat, frontline constraints on time and resources, the use of stratagems by or against the enemy, and so on. As a result, “it may be difficult to discern whether a person is a combatant, a civilian, or a civilian taking a direct part in hostilities.” The distinction among these individuals can pose a question of life or death, and it certainly presents the opportunity for justice miscarried. While the civilian may not be intentionally targeted by military operations, as a general rule both the combatant and the civilian taking direct part in hostilities may be killed with impunity. They also may be detained for the war’s duration and subjected to trial and punishment for violating the law of war. This chapter is interested in the parallel between a particular understanding of the practice and law of war, and the developments in domestic criminal justice attributable to the Innocence Movement. As it turns out, many of the issues in domestic wrongful conviction cases are present in aggravated form in the context of war.