International Law: LOAC

More on Henry V and LOAC---From Robert Farley

By Benjamin Wittes
Wednesday, March 6, 2013, 8:57 PM

Over at the Lawyers, Guns, and Money blog, Robert Farley has an interesting post taking me to task for ignoring the siege of Harfleur in my discussion of Henry V and the law of armed conflict. Farley quotes the lengthy and menacing speech Henry gives to the resisting city of Harfleur, in which he threatens to destroy it utterly, rape its women, and kill its children. I had left this scene out of my discussion because the speech does not exactly articulate any legal principles. But Farley argues that I am wrong to do so. Here's the speech:

Farley argues that "I think it’s fair to say that there’s a lotta Yamashita Doctrine stuff going on here":
Hal is using the threat of brutal depredation to in order to coerce the surrender of the city, which continues to have the capacity to resist. However, Henry’s speech is ambivalent with regard to his own responsibility for this destruction; on the one hand he declares that the next attack will result in the destruction of the city and its people. On the other, the claim “whiles yet my soldiers are in my command; whiles yet the cool and temperate wind of grace o’erblows the filthy and contagious clous of heady murder, spoil, and villainy” suggests that the destruction will be the inevitable result of a final assault, regardless of command intent. The complications of evaluating command responsibility for war crimes (and it seems quite clear here that Henry is comfortable in declaring war crimes will be committed as the result of the next assault) were not lost on late medieval/early modern jurists; according to my extensive research (I read the Wikipedia page), one of the first cases to prefigure the “Yamashita Doctrine” took place in 1474. In general terms, there are distinctions between the responsibility of commanders who order war crimes, those who allow war crimes to take place, and those who don’t take sufficient proactive steps to prevent the commission of war crimes (Yamashita himself is a complicated case, falling at best into the third category). I think it’s fair to say that Henry is implicating himself on at least the second and third grounds, and probably on the first.  If you watch carefully, you can almost see Henry’s JAG advisor having an aneurysm during the speech.
He goes on to argue that one of the scenes I focused on---the hanging of Bardolph---is, in fact, less LOAC-driven than political. I don't think I agree, but this is very worth a read.