No Law Except the Sword: American War Criminals and the Failure of Military Justice in Europe, 1942-1945

Benjamin M. Schneider

Advisor: Christopher H. Hamner, PhD, Department of History and Art History

Committee Members: Meredith Lair, Samuel Lebovic

Enterprise Hall, #77
April 18, 2019, 11:00 AM to 01:00 PM


This dissertation examines the use of extralegal violence by U.S. troops on the European battlefields of the Second World War and the efforts of the U.S. army’s military justice system to find, prosecute, and punish those violations of international law. It argues that U.S. troops killed surrendering Axis soldiers, prisoners, and civilians often enough that this sort of criminal misconduct formed a regular part of the fighting in Europe, and was therefore much more commonplace than previously supposed. Despite the fact that these acts were illegal under both U.S. and international law, the U.S. army did not have any institution capable of effectively policing its troops and that such killings regularly went unpunished. The military justice system thus failed in its duty to enforce the law.

This failure was rooted in the peculiar circumstances of the war and the seismic changes it created in military law. Before the war, military law did not generally require the trial and punishment of individual war criminals of whatever nationality. Instead, law was enforced on the battlefield through a system of mutual retaliation and reprisals that was controlled by combat commanders rather than rear area bureaucrats. Officers of the U.S. army believed, that it was inevitable that in the heat of battle young men trained to kill would sometimes go too far and shoot down prisoners or surrendering soldiers, and occasionally even civilians. They saw these killings as a byproduct of mental degradation from prolonged exposure to combat, and the indoctrination in hating the enemy and taking human life that was necessary to turn pacifistic civilians into hardened soldiers. As such, the military justice system was a small organization whose primary purpose was to enforce military discipline in rear areas, not one designed to handle violations of international law.

This changed dramatically in 1943, when the Allied powers stated their intent to try all individual Axis war criminals after the conclusion of the war. This committed the army to ensuring that its own troops faced trials for similar conduct, lest the post-war tribunals be tainted by the specter of victor’s justice. But by this point it was nearly impossible to completely overhaul the system, reinforcing its numbers and changing its procedures to try to ensure the enforcement of international law in the ranks. When efforts at reform (often half hearted) failed, the army chose to put a figleaf over the problem with a slapdash, exculpatory post-war report, content to ignore the problem in light of a broader push by the American people to reform the military justice system to more closely conform to civilian standards of justice.

This dissertation offer a stark reappraisal of combat in the Second World War, and argues more broadly that the war served as a watershed moment where war crimes cases went from being a marginal concern of military justice to one of its central priorities.