Writing for his fellow military officers in early 1903, United States Army Major C.J. Crane reflected on the recent Philippine–American War. The bloody struggle to suppress an insurgency in the Philippines after the United States had annexed them from Spain in 1899 had officially concluded the previous July. The war had been accompanied by fierce racist sentiments among Americans, and in keeping with these, Crane described his foes as “the most treacherous people in the world.”Footnote 1 But Crane's discussion drew as much on concepts of law as it did on race. The average American officer, Crane argued, had “remembered all the time that he was struggling with an enemy who was not entitled to the privileges usually granted prisoners of war,” and could be summarily executed, without benefit of “court-martial or other regular tribunal.” If anything, the Americans had been too generous. “Many [American] participants in the struggle,” he maintained, “have failed to fully understand that we were practically fighting an Asiatic nation in arms and almost every man a soldier in disguise and a violator” of the laws of war.Footnote 2 But what did those laws mean to the United States during the conflict, and what does this indicate about the broader history of international law's relationship to empire?
The Philippine–American War, and the preceding Spanish–American War, arguably marked the United States’ entry into the world of imperialism at its height, as Western states conquered numerous African and Asian populations. Such conflicts were inflected, and often justified, by the empires’ claims to racial and civilizational superiority.Footnote 3 This was not only a matter of rhetoric or belief, but also of law: colonizing powers argued that the polities they sought to conquer were not entitled to participate in the legal system, as it took shape through custom and treaties. International lawyers, as they emerged as a recognizable group of professionals and intellectuals during the second half of the nineteenth century, perceived a fundamental division between the “civilized” states of the West, and others that were inferior.Footnote 4 This distinction, scholars have argued, was particularly salient during imperial wars. “One of the disturbing implications of being written off as uncivilized,” Mark Mazower notes, “was that if Africans or Asians sought to resist European incursions they could be treated as if they lay outside the law.” Law, according to this view, simply served to mask brutality.Footnote 5 Frédéric Mégret goes further, arguing that exclusion was not incidental but rather fundamental to the project: “the laws of war, from their inception, were subtly designed to exclude non-European peoples from their protection.”Footnote 6
There has been little systematic study of the laws of war during the Philippine–American War, even as American historians have recently paid closer attention to the broader legal history of the Spanish–American War and the territories that the United States conquered in the conflict.Footnote 7 Those who have written about other aspects of the conflict often seem to imply that, as in European imperial conflicts, the United States denied the law of war's applicability, in whole or in part, because of the Filipinos’ perceived racial and civilizational inferiority.Footnote 8 This is often tied to discussions of the extreme violence and atrocities, including against noncombatants, unleashed by the United States military. In surveying the laws of war throughout United States history, John Witt has recently suggested that most United States officers saw the laws of war as “adaptable to the irregular warfare of the Philippines,” but that the law nonetheless “seemed to have lost its way,” especially through torture.Footnote 9 A few other historians, by contrast, have seen the law, and United States forces’ references to it, as a constraint on extreme violence.Footnote 10
This article turns away from questions of whether the law applied, or was followed, to explore conflicting and changing ideas of how it was interpreted and deployed. I draw on United States archival sources, particularly those of the judge advocate general (JAG), to trace fraught debates among officers over what the law meant. Whereas the issues of torture and the “water cure,” and to a lesser extent courts-martial, have received the most attention in scholarship, this story emphasizes instead interpretations during active combat operations, which established the United States Army's official legal theory. In doing so, this article focuses less on high-ranking United States politicians—whose arguments were primarily rhetorical and political—than on mid-ranking military officers, in the JAG's office or in operational commands, who engaged with the law. Many of these officers, even those without formally legal roles, were trained as lawyers. (This was common throughout United States history.)Footnote 11 The views of Filipino officers, insurgents, and civilians are certainly well worth examination, but they are not the focus of this article. This is not, therefore, a comprehensive examination of the role that law played in the conflict. It is an examination of the colonizers’ views, not those of the colonized.
The article challenges both the view that the United States used racial or civilizational arguments to avoid the law, and the view that the United States obeyed the law or easily adapted it. Instead, as Crane's article implies, United States officers reinterpreted the law so that it could simultaneously demonstrate their moral and cultural superiority, while also authorizing widespread summary violence. But this was a contentious process. It will be seen that no United States officer believed that law was irrelevant to the conflict. Some argued that the law of war did not apply, either because Filipinos were inherently uncivilized and racially inferior, or because of insurgents’ behavior; or because they had not signed the proper treaties. In the face of these challenges, and even of frequent violations of the law, the United States government consistently reiterated that the law did apply. But the United States Army nonetheless found room to license more extreme violence in ways that fit both perceived operational needs and racial assumptions. By doing so, officers used the law to understand guerrilla warfare, to advance their operational goals, to defend their actions, and to vindicate their claims to be “civilizing” the Philippines. Even when the army applied considerable brutality, officers produced specific legal justifications for their actions. The purpose of studying those justifications is not to claim that they were correct or plausible. The point is that those justifications did exist, and that their existence forces reconsideration of the relationship among law, war, and empire.
This study, then, provides a new understanding of the law's role in the Philippine–American War. In a global context, by refocusing attention from questions of inclusion and exclusion to the work of legal interpretation itself, it suggests how integral international legal interpretation was to imperial wars. The racism and violence that characterized the age of high imperialism could be articulated not only by avoiding the law, but by interpreting it.
The War
The Philippine–American War followed immediately after the 1898 Spanish–American War. Filipino insurgents led by Emilio Aguinaldo, who had fought for independence against the Spanish, realized by early 1899 that the Americans, who had conquered Manila during the war, did not intend to withdraw. Indeed, the United States signed a treaty with Spain to annex the entirety of the Philippines, not only for imperial advantage, but also in the name of “civilizing” the islands.Footnote 12 Fighting broke out on the night of February 4, 1899, and the better-trained and better-organized American forces soon gained the upper hand. Brian Linn describes one of the first battles, on February 16, 1899: “whole companies and squads [of insurgents] appeared, drawn up in parade formation, each man with a uniform, officers on horseback, buglers blowing, and flags flying. They marched forward into oblivion: the [U.S.] Volunteers let them approach and then shredded their lines with Springfield [rifle] fire.”Footnote 13
After such victories, the United States forces under Major General Elwin Otis, which had initially occupied only Manila, began to take control of the rest of the country. Recognizing that his Western-style army was at a disadvantage, Aguinaldo began a campaign of guerrilla warfare by the end of 1899.Footnote 14 The Americans at first claimed an official policy of “benevolent assimilation,” hoping that they could win the sympathies of most Filipinos. However, President William McKinley replaced Otis with Major General Arthur MacArthur in May 1900, and after McKinley was re-elected in November that year—crushing Filipino hopes for a negotiated solution—MacArthur adopted harsher tactics.
Even before this turn, the Americans increasingly interpreted the conflict as what Paul Kramer calls a “race war” again a civilizationally and racially inferior foe.Footnote 15 Racism, and brutality, were rampant; an American sergeant, for example, recorded his desire to “blow every nigger [here referring to Filipinos] into a nigger heaven … When we find one that is not dead, we have bayonets.”Footnote 16 In Washington, too, Secretary of War Elihu Root denigrated the insurgent forces as “an army of Tagalogs, a tribe inhabiting the central part of Luzon, under the leadership of Aguinaldo, a Chinese half-breed.”Footnote 17
Even as Root attacked Aguinaldo and his followers in racist terms, his subordinates made a legal case against the insurgents, based on the United States–Spanish treaty that transferred the Philippines to American control. Charles Magoon, Legal Officer of the War Department's Division of Insular Affairs, stated the official United States theory of the war:
Although the United States has acquired the rights of sovereignty over those islands, it has not entered into peaceable and undisputed possession thereof. In establishing that possession it encounters an armed insurrection, against which it is conducting military operations and with the forces of which it is engaged in active hostilities. The military government of the islands has been continued and is now utilized as a means of suppressing said armed insurrection, and therefore is authorized to exercise the rights of a belligerent.Footnote 18
According to this view, the Philippines, were not an independent state, but the conflict was a real war. This followed the example of the American Civil War, when the Union had denied the Confederacy's legal independence, while still treating its forces as legitimate belligerents.Footnote 19 Drawing partly on Civil War precedents, the United States Supreme Court held that the Philippines were legally American territory.Footnote 20 Although that court never directly ruled on whether the conflict was a war, the United States Court of Claims twice held that it was.Footnote 21 The United States Army JAG's office, too, issued opinions finding that it was wartime, for the purposes of soldiers’ rights to wear special decorationsFootnote 22 and to collect combat pay,Footnote 23 division and brigade commanders’ capacity to convene courts-martial,Footnote 24 department commanders’ authority to dismiss officers,Footnote 25 the applicability of harsher penalties for deserters,Footnote 26 and commanders’ ability to deport American journalists from the Philippines.Footnote 27
Out in the field, Otis regarded the conflict as a war early on.Footnote 28 He clearly differentiated between political and military legitimacy, refusing in October 1899 to receive commissioners sent in the name of the “honorable president Aguinaldo,” and insisting that he would only speak to representatives of “General Aguinaldo, general in chief of insurgent forces.”Footnote 29 Otis (who was a graduate of Harvard Law School and closely advised by a former law professor, Lieutenant Colonel Enoch Crowder) paid careful attention to the laws of war, issuing orders as early as April, 1899 that “unarmed citizens” and private property were to be protected, and that “a wounded or surrendered opponent, who is incapable of doing any injury, is entitled to the most cordial treatment and kindness.”Footnote 30 “Any departures from the well-established amenities of the battlefield or the laws of war,” he continued, “must and will be punished.”Footnote 31 Such departures occurred fairly frequently, but even as its brutality intensified, the United States Army also intensified its engagement with the laws of war.
The Law
The “laws of war,” for the United States Army, referred to customary international law on conduct within war (jus in bello) rather than to rules for going to war (or jus ad bellum). In particular, officers looked to General Order (G.O.) 100, 1863 Series, a codification written by the German-American professor Francis Lieber for the Union Army during the Civil War.Footnote 32 It summarized Lieber's view of the rules that had evolved between Western states in the preceding centuries, including regulations for sieges, truces, and the treatment of enemy prisoners and property. By the time of the Philippine–American War, the code was taught at West Point, and was familiar to most officers.Footnote 33 In the Philippines, G.O. 100 proved useful as a rhetorical weapon against the insurgents, and a guide to more tangible measures against both Filipino property and captured Filipinos.
First, American commanders insisted that the laws of war imposed constraints on the Filipinos’ means of fighting, and even their authority to fight at all. In November 1899, for example, Adjutant General Henry Corbin in Washington instructed Otis to “notify Aguinaldo that he and his advisers will be held personally responsible for any injury done to Spanish or American prisoners in violation of the laws and usages of war among civilized nations.”Footnote 34 Corbin implied that the Filipinos were bound by the customary international law of war, as codified in G.O. 100, even though the Americans did not recognize Philippine sovereignty. The laws of war, according to this view, amounted to an off-the-shelf set of rules that the insurgents, by engaging in warfare, had tacitly accepted.
American commanders also deployed the laws of war in demanding that the insurgents capitulate. Once victory was impossible, the Americans reasoned, the law made it criminal to continue fighting. This theory was useful in domestic public relations, as evidenced when William Howard Taft, Governor General of the Philippines, argued before Congress that it was “a crime against the Filipino people” for the insurgents to continue fighting.Footnote 35 But it was useful in the field, as well. In negotiations in July 1900, MacArthur pointed out to the insurgent General José Alejandrino that the latter's forces were scattered and nearly defeated, and contended that “the rules of modern warfare forbid a continuance of hostilities after the hope of success has vanished, and … to infringe this rule by adopting tactics of guerrilla warfare is simply to begome [sic] guilty of murder for the death of every man who falls.”Footnote 36
Nearly a year later, Brigadier General Robert P. Hughes used similar reasoning to justify recommending that a captured insurgent leader, Annanias Diocno, be exiled to Guam. Hughes accused Diocno of carrying on deceptive correspondence with the Americans (and also with subordinate insurgent leaders). “This of course would have been entirely admissible in a state of war where results were still possible,” Hughes argued, “but at the time Diocno was applying these methods we were simply treating with him in order to spare useless sacrifices of life.”Footnote 37 Thus, he had violated the laws of war. Here, again, the Americans conveniently interpreted the laws of war to mean that their victories transformed legitimate resistance into illegal behavior.Footnote 38
The law regulating the destruction of enemy property also provided a framework within which the United States Army could license and justify its expanding campaign. As the insurgents adopted guerrilla warfare, the army sought to punish villagers who harbored or supported them. JAG opinions issued in 1903 and 1904 with reference to the Philippines confirmed the legality of burning houses belonging to those who were “holding communications with and forwarding supplies to the insurgents,”Footnote 39 and later authors justified this as a “legitimate method…of reprisal.”Footnote 40 Likewise, the JAG held that Section 15 of G.O. 100Footnote 41 authorized the burning of a market house, in which an American sympathizer had been murdered, as “a necessary military measure to prevent such future lawless acts.”Footnote 42 The United States could also seize insurgent property; Magoon issued an opinion in October 1899 legitimating the confiscation, from a Manila bank, of money belonging to insurgents “[u]nder the laws and usages of war.”Footnote 43
These legal opinions held that the law not only allowed these actions, but shielded the government from any potential lawsuits. If the market house fire spread to other houses, there could be no liability “without negligence on the part of anyone.”Footnote 44 Another opinion, on the mistaken killing of livestock, made clear that even if Americans were negligent, the United States would still be immune, because the doctrine of sovereign immunity meant that “the United States is not liable for the torts of its officers or agents.”Footnote 45 The same reasoning applied to property of all types, whether destroyed or seized.Footnote 46 Even when United States forces appropriated property for their own use—a situation that could ordinarily create an implied contract to pay, enforceable under the 1887 Tucker ActFootnote 47—the JAG held that the owner could not sue if he or she were arrested for aiding the insurgents.Footnote 48 Years after the war ended, Judge Fenton Booth of the United States Court of Claims used this same reasoning to dismiss José López y Castelo's claim for compensation after American forces had used his boat in 1901.Footnote 49 Such legal impunity may have emboldened junior officers, who sometimes resorted to the burning of entire villages, without legal authority, but with a blind eye from their commanders.Footnote 50
The laws of war governed the treatment not only of property but also of people. In customary international law, soldiers were (and are) entitled to “belligerent privilege”: immunity to punishment by the enemy for the violent actions they took as part of their wartime duties. Were this not the case, soldiers in combat would constantly worry that, if captured, they could be tried for murder or assault.Footnote 51 Instead, international custom (and G.O. 100) provided captured soldiers with immunity to prosecution, requiring them to be held as prisoners of war. In keeping with Otis's immediate application of the laws of war, American commanders, almost by default, assumed that captured insurgents were entitled to belligerent privilege: that the proper legal category for them was “prisoners of war,” not “criminals.” Therefore, on March 3, 1899, Otis reported that of more than 1,500 “insurgent soldiers” captured since February 4, he held the “majority as prisoners of war.”Footnote 52 By March 10, 1900, the Americans held 4,149 prisoners.Footnote 53
As a legal matter, then, most captured insurgents were prisoners of war by default.Footnote 54 From a policy perspective, however, the Americans’ initial goal of “conciliatory action” meant that many of those captured were “disarmed and immediately released,” often after signing a parole agreement or taking an oath of allegiance to the United States.Footnote 55
Those who turned themselves in, or swore an oath, were often promised immunity to criminal charges.Footnote 56 Since at least the Civil War, the United States government had maintained that in cases of rebellion it could simultaneously exercise the rights of a belligerent engaged in a war, and those of a sovereign faced with treason. Combatants were therefore, in theory, vulnerable not only to being killed or captured as prisoners of war, but also to trial for treason, although in practice, the United States government rarely conducted such trials in either the Philippines or the Confederacy.Footnote 57 The immunity offered those who cooperated with the Americans thus would likely have covered treason. However, it explicitly did not extend to crimes against the law of war, as opposed to crimes against ordinary criminal law. This became critical to the Americans’ evolving, and contested, legal strategy.
Did the Law Apply?
The roots of this evolution lay in Aguinaldo's shift to guerrilla warfare in the second year of the war. The insurgents initially hoped that if they fought “in conventional formations, demonstrated discipline, and treated prisoners humanely,” they might gain international recognition as a sovereign state with rights under international law, but United States victories doomed this strategy.Footnote 58 By June 25, 1900, the civilian Philippine Commission could report to Secretary of War Root that “[n]o organized army of insurgents exists anywhere.”Footnote 59 Indeed, by November 1900, the insurgents disbanded their field army entirely, instead engaging in hit-and-run raids against American forces while using covert pressure and threats of assassination to ensure support from local villages.Footnote 60 As noted, the Americans adopted increasingly harsh military tactics, and many officers felt that these should go hand in hand with a legal reinterpretation: they believed that Filipino insurgents were not entitled to belligerent privilege.
There were two versions of this argument: first, there was a racist argument, holding that the Filipinos were inherently inferior (because of either race or level of civilization) and therefore fell outside the scope of international law entirely. This was joined by a contractual argument, claiming that the law was presumptively applicable, but that the insurgents had violated it themselves. Therefore Filipinos, as a group, had forfeited the law's protections. As will be discussed, the United States Army repeatedly rejected both views, preferring a third option: articulating its new, harsher tactics through the laws of war.
Even to enter into this debate, however, required answering a previous question: was the guerrilla conflict a military matter in the first place? Otis, who initially believed it was, had changed his mind by late 1899. As the American forces extended their control over the Philippines, they increasingly contended with “bandits” whom they believed had few if any political motivations.Footnote 61 At the same time, more and more insurgents shed their uniforms and became guerrillas. American commanders had difficulty differentiating bandits from guerrillas, and indeed the same people could be called by both terms at different times.Footnote 62
For Otis, this was a sign of victory. In the area around Subic Bay, he reported in December 1899, “organized rebellion no longer exists, and troops [are] active pursuing robber bands.”Footnote 63 Otis allegedly censored reporters who tried to report the existence of more politically oriented guerrilla groups,Footnote 64 and he later testified before the Senate that after Aguinaldo's army disbanded, there was no real “war,” only law-enforcement.Footnote 65 In short, in Otis's view, what remained “was mere outlawry … which the army, acting as a constabulary force, would soon end, with the coöperatıon of the peaceful inhabitants when they saw how their interests lay.”Footnote 66 This would have suggested that criminal law, rather than the laws of war, was the proper legal framework for the remainder of the conflict.
The rest of the United States government, however, disagreed. Otis was dismissed in May 1900, partly because he did not take the opposition seriously enough.Footnote 67 Warfare, therefore, remained the legal framework, but many officers believed that even if the insurgents were belligerents, they should not be entitled to the protections of the laws of war. It was here that the army entered an internal debate, which began with junior officers but soon reached all the way to MacArthur.
“War Rebels”
The debate proceeded from the wording of G.O. 100, which allowed the summary punishment and even execution of “highway robbers,” “war rebels,” and guerrillas.Footnote 68 Such combatants, although belligerents, were not privileged belligerents. They had committed offenses not just against the criminal law, but also against the law of war. In the Mexican–American and Civil Wars, offenders of this type had been tried and punished by military commissions, constituted in the field.Footnote 69 Many officers felt that these provisions were applicable to the average guerrilla, who, one officer claimed, “wears the dress of the country; with his gun he is a soldier; by hiding it and walking quietly down the road, sitting down by the nearest house, or going to work in the nearest field, he becomes an ‘amigo,’ full of good will and false information.”Footnote 70
In May 1900, the adjutant general of the Department of Southern Luzon reminded its constituent units that G.O. 100 provided “ample and lawful methods for the treatment of prisoners, spies, and other persons not entitled to the rights of recognized belligerents.”Footnote 71 Brigadier General Loyd Wheaton went further in his Department of Northern Luzon, ordering the relevant portions of G.O. 100, “concerning the treatment and classification of spies, war rebels, war traitors, and prisoners of war” to be “published as a proclamation to the inhabitants.”Footnote 72 By the end of the summer, Brigadier General Samuel B.M. Young, one of Wheaton's subordinates, had established a regular routine of trying “war rebels” by a provost judge, whose actions, “as he is not bound by any special law of procedure or evidence … may be as summary as the Laws of War and circumstances justify.”Footnote 73
It remained unclear, however, precisely who could be considered a war rebel, and the policy of “benevolent assimilation” meant that the category was initially interpreted very narrowly.Footnote 74 This may have been, in part, a result of Otis's view that the guerrillas were a criminal, rather than law-of-war, problem. Even after he relieved Otis in May 1900, MacArthur discouraged the execution of “war rebels” and similar offenders against G.O. 100. In November 1900, when Wheaton sentenced a guerrilla to death for “three murders,” MacArthur commuted the sentence to imprisonment. (Wheaton promptly re-tried the man for three more killings, and convicted and hanged him before MacArthur could intervene.)Footnote 75
Military commissions were established, but they heard only seventy-two cases between August 1898 and September 1, 1900, executing seven defendants.Footnote 76 (Another set of tribunals, the Provost Courts, could only impose sentences of less than 6 months’ imprisonment, later increased to 2 years.)Footnote 77 Senior Americans saw this as a “humane policy.”Footnote 78
Many of MacArthur's subordinates, however, protested. They felt that G.O. 100's provisions against war rebels could and should be much more widely applied. One officer, for example, complained that G.O. 100 was “plain to me, but I do not believe that my action would be approved were all guilty who may be captured immediately put to death.” Colonel Jacob H. Smith was more blunt, saying “it is difficult to get Officers to take prompt measures,” which was regrettable because “[a] few killings under G.O. 100 will aid very much in making the enemy stop these assassinations.”Footnote 79
Captain John H. Parker made a broader argument: writing directly to then-Vice President Theodore Roosevelt in October 1900, he argued that it was futile to “attempt to meet a half civilized foe … with the same methods devised for civilized warfare against people of our own race, country and blood.”Footnote 80 This gestured toward a racist argument for the law's inapplicability, but Parker's suggested policy was more individualized: he recommended that Articles 82–85 of G.O. 100 be more strictly applied, and that therefore “murderers, highway robbers, persons destroying property, spies, conspirators, and … part-time guerrilla[s]” should be executed.Footnote 81
On August 23, 1900, Captain Robert K. Evans, commander of the 2nd Battalion, 12th Infantry Regiment in San Miguel y Norte, Luzon, made the most comprehensive case for a new approach.Footnote 82 On August 23, 1900, he explained his views to his commanding officer, Lieutenant Colonel Robert L. Howze. Judicial process, Evans argued, was useless: the insurgents killed those Filipinos who opposed them, so “anything in the nature of an investigation or trial, based on testimony, is a failure and a farce.” This was not a “military” situation, he argued, but “an organized secret conspiracy, comprising a large number of War Rebels, Robbers, and Murderers,” and “to grant these creatures the humane protection of the Laws of War, is simply assisting and encouraging them in crime.” Evans, therefore, embraced the contractual argument for the law's inapplicability: the Filipinos, as a group, had broken the law-of-war contract, relieving the United States of its own responsibilities. Therefore, he suggested that “all the male inhabitants of the barrios of Batac, Paoay, and Badoc, be declared War Rebels.” Their residence in these areas, he contended, “is conclusive evidence” that they supplied the insurgent combatants and refused to give information about them.
Howze passed Evans's arguments along to his own commanding officer, S.B.M. Young, who in turn sent his views to Wheaton, the department commander.Footnote 83 Young disagreed with Evans, largely on legal grounds. He began by reiterating the United States legal theory of the war, that Aguinaldo's forces were legitimate belligerents. “So long as these people are recognized merely as Insurgents,” he reminded Wheaton, “they are entitled to treatment according to the Laws of War. If we attempt to treat them otherwise than according to the rules of war, we shall simply be taking a backward step in civilization.” He left unspoken the obvious: this would contradict the Americans’ declared mission of bringing civilization to the islands.
Thus Young denied Evans’ implicitly contractual view of the laws of war; to Young, the laws were incumbent upon the Americans as civilized people, regardless of their opponents’ behavior. And working within those laws, it was impossible to “declare a whole community war rebels,” as Evans suggested. The status of war rebel, according to Young, was based on “an act.” If individuals had acted as war rebels, he continued, then they were war rebels; if they had not, then a declaration could not make them so. Evans's suggestions were implemented.
A few months later, however, Young, who had grown bitter toward his superiors, changed his view.Footnote 84 Now he went even further than Evans, arguing that the law was inapplicable to the conflict, not because of the insurgents’ behavior, but because of their putative racial and civilizational inferiority.Footnote 85 He reported to Manila on December 28, 1900 that it was more difficult to capture insurgents than American Indians, because it was impossible to differentiate “the actively bad [Filipinos] from those only passively so. If it was deemed advisable to pursue the methods of European nations and armies in suppressing Asiatics,” the insurrection could have been put down more quickly. Young's superior, Wheaton, passed along the report, and endorsed “the swift methods of destruction followed by other powers in dealing with Asiatics.”Footnote 86 These comparisons revealed the weight he placed on ideas of Filipino racial inferiority and difference.
When MacArthur's chief of staff, Brigadier General Thomas H. Barry, asked precisely what Young had in mind, the latter replied with a list of recommended measures.Footnote 87 Most notably, he contended, Europeans had “[r]ecognized the fact that they were fighting a people, the mass of whom were worse than ordinary savages, and were not entitled to the benefits of G.O. 100, A.G.O. 1863.” Young noted that European states had retaliated “in kind on their rebellious subjects for every murder or assassination,” and punished “by death summarily or by means of drum head court-martials, provost or summary courts, all spies, murderers, assassins and persons caught with arms after having taken the oath of allegiance.” Echoing a principle found in G.O. 100, Young argued that, overall, a harsh war would be short, and, therefore, “in the end the most humane course.”Footnote 88 Whereas Evans had seen the laws of war as a contract, abrogated by the insurgents’ own behavior, Young implied that the Filipinos, because of their racial and civilizational character, either had never been, or could not ever be, parties to the contract in the first place.
Wheaton endorsed Young's views, agreeing that Europeans knew how to deal with “races that have no idea of gratitude, honor, or the sanctity of an oath and have a contempt for government which they do not fear.”Footnote 89 Wheaton, however, seemed to distance himself from Young's suggestion of summary execution and drum-head trials, instead urging the insurgents’ “annihilation by every method known to civilized war,” including “the execution after due trial and conviction of murderers, assassins and their accomplices.” For Wheaton, the law made severe violence not only legally permissible, but symbolically beneficial. It vindicated American claims of superior civilization.
Reinterpreting the Law
MacArthur, who had authority over the matter as overall United States commander, had once sympathized with Young and Evans. In late 1899, when still serving under Otis, MacArthur had proposed a general amnesty, with the promise that those who did not accept it “would be treated when caught as outlaws and murderers.” Otis—perhaps drawing on his legal training—vetoed this, fearing “legal difficulties of an ‘international character’” and the risk of retaliation.Footnote 90 MacArthur, with Taft's concurrence, again suggested such a policy to his new superiors in Washington after he took command.Footnote 91 Adjutant-General Corbin, however, advised MacArthur not to mention this step when he did issue an amnesty in June 1900. By the end of August, MacArthur himself felt that with the United States presidential election approaching, it was best simply to let the amnesty expire, with no further threats.Footnote 92 He hoped that if McKinley won that election, the insurgents would give up on inducing the United States to withdraw from the Philippines.Footnote 93 When the insurgents nonetheless continued to resist after McKinleys’ victory in November 1900, MacArthur sought harsher measures to suppress them. Earlier that same autumn, Corbin himself had urged MacArthur that Filipinos who used false claims of allegiance to kill Americans should be tried, “convicted and punished.”Footnote 94
MacArthur, however, chose not to reject the laws of war, but to interpret them.Footnote 95 The necessary military measures, MacArthur reported to Washington, “[f]ortunately … fell directly within the operation of the well-known prescriptions of the laws of war which touch the government of occupied places.”Footnote 96 Therefore, on December 20, 1900, he issued a proclamation for the “precise observance of laws of war.”Footnote 97 He began by reiterating that the United States recognized the Filipinos as legitimate belligerents, but not as representatives of a sovereign state. Filipino actions had violated the laws of war; therefore, MacArthur intended to “remind all concerned of the existence of these laws.”Footnote 98 Therefore, in an order that read (in Brian Linn's words) “much like a legal brief,”Footnote 99 MacArthur laid out his view of the rules, and their implications.
First, he argued that American occupation invoked martial law, which in turn created a reciprocal relationship of rights and duties between the occupiers and the occupied. This contract was violated by “insurgent commanders” when they threatened Filipinos with execution as the penalty for aiding the United States. The guilty parties “must eventually answer for murder or other such crime” and would be unable to escape, except by fleeing United States jurisdiction and never returning to the Philippines.Footnote 100
Next, MacArthur turned to “war traitors” (a term used in G.O. 100), defining them as “[p]ersons residing within an occupied place who do things inimical to the interests of the occupying power” “according to the nature of their overt acts.”Footnote 101 Moreover, the implicit contract between occupier and occupied forbade the latter from “comply[ing] with the demands of an expelled public enemy” or failing to report such demands.Footnote 102 Those who protected the insurgents’ supporters “from a sense of timidity or misplaced sympathy for neighbors” might also be “classified and tried” as war traitors.Footnote 103 MacArthur also threatened publishers in Manila with punishment for sedition, based on martial law.Footnote 104
Finally, and most critically, MacArthur turned to the rules for unprivileged belligerents, referred to in G.O. 100 as war rebels, “partisans,” or “armed prowlers.”Footnote 105 He claimed the United States had previously refrained from fully implementing these rules out of “solicitude,”but no more.Footnote 106 “Men who participate in hostilities without being part of a regularly-organized force and without sharing continuously in its operations, but who do so with intermittent returns to their homes and avocations,” he declared (paraphrasing G.O. 100) “divest themselves of the character of soldiers, and if captured are not entitled to the privileges of prisoners of war.”Footnote 107
MacArthur closed by situating his order as part of the American mission of “civilizing” the Philippines. The “careful perusal” of the laws of war “by the people, it is hoped, will induce all who are eager for the tranquilization of the Archipelago to combine for mutual protection and united action in behalf of their own interests and the welfare of the country.”Footnote 108 The law itself, he said, represented an international effort, “adopted by all civilized nations[,]” which had evolved through conferences and discussions “to mitigate, and to escape, as far as possible, from the consequences” of war's barbarism.Footnote 109 Indeed, just the previous year, the Hague Convention of 1899 had codified a set of rules that largely drew on G.O. 100.Footnote 110
MacArthur's reasoning was consistent with previous United States interpretations, but was clever in its indirect effects. As the United States had long argued, it was engaged in a war to assert its sovereign rights throughout the islands. Until that conflict had concluded, it retained the rights of a military occupier in those areas it had actually conquered. The continued existence of a de facto state of war with the Philippine army, “an expelled public enemy,” justified MacArthur in applying the laws of war to govern the conduct of civilians in those occupied areas. In particular, it justified the punishment of civilians who aided the Philippine army.Footnote 111
As the Americans themselves admitted, there was no regular Philippine army remaining in the field by the end of 1900, but by referring to it, MacArthur perpetuated a useful legal analogy: the image of the Philippines as a captured part of a Southern American state in the Civil War, with a Confederate army still lurking down the rail line. Indeed, G.O. 100 itself had originated during the Civil War, as the Union had shifted to a policy of intimidating Southern civilians into removing their support for the Confederacy. In the words of G.O. 100, the commander should “throw the burden of the war” on disloyal citizens, because “[t]he more vigorously wars are pursued,” the code declared, “the better it is for humanity.”Footnote 112
MacArthur now pursued the same strategy, seeking to make Filipino civilians fear the United States as much as they feared the insurgents. His Provost Marshal General, J. Franklin Bell, who had jurisdiction over Manila, thus sought “to create a reign of fear and anxiety among the disaffected which will become unbearable.”Footnote 113 Another commander explained that “[t]he natives must be made to feel that a compliance with insurgent demands will be as dangerous as a refusal.”Footnote 114
MacArthur thus hoped to influence civilians, but the punishment measures he laid out in his proclamation were still targeted only at those (classified as) fighting or directly helping combatants.Footnote 115 Ignoring Evans's suggestion that all of the male residents of certain areas be declared war rebels, MacArthur's proclamation applied that status only to those who actually undertook the actions defined in G.O. 100. Likewise, only “overt acts” could make one a war traitor.Footnote 116 Therefore, MacArthur's Provost Marshal General Bell (himself a lawyer)Footnote 117 ordered that his subordinates were to avoid arresting the innocent, and that “there should be foundation for reasonable suspicion.” Even though this was not strictly a criminal situation; “you are not being called upon to administer justice, but to wage war.”Footnote 118 Assistant Adjutant General Arthur L. Wagner, too, authorized the arrest only of those who were proven guilty or suspected “to a moral certainty.”Footnote 119 This could, however, include useful legal fictions to extend the available evidence: MacArthur's Chief of Staff Barry instructed the Department of Northern Luzon that “it is safe to assume that all prominent families” were in league with the insurgents, unless proven otherwise.Footnote 120 It is also likely that many lower-ranking officers went beyond their legal authority, and were allowed to do so.
Overall, civilians remained officially off-limits to attack and detain, unless they themselves, by their “overt acts,” became war rebels or war traitors. Those in the (increasingly mythical) insurgent field army were subject to captivity only as prisoners of war, not as war criminals. So were insurgent guerrilla fighters, as long as they did not engage in assassination or intermittently return to civilian roles. Fighters who were found guilty of those activities could be executed.
This distinction is illustrated by the case of Eroberto Gumban, an insurgent who was tried by a military commission on the island of Panay in 1901 for “murder, and violation of the laws of war.”Footnote 121 Gumban was one of thousands of prisoners tried in 1901 and 1902 for a variety of criminal and law-of-war crimes, of whom dozens were executed.Footnote 122 He was initially convicted and sentenced to death for commanding an irregular company “not being part or parcel of the organized hostile army, and not sharing continuously in regular warfare, but who did intermittently return to their homes and avocations” and not wearing “a distinctive uniform.” But MacArthur disapproved this sentence, on the grounds that Gumban was “a lawful belligerent” because “[h]is identity was known, he shared continuously in the war, and he did not return to his home intermittently and assume peaceful avocations.”Footnote 123 Remaining continuously in the field made guerrillas more vulnerable to the Americans; therefore, this interpretation of the law sought to push guerrillas like Gumban toward tactics more advantageous to the Americans.
Gumban was set free, and other Filipinos, accused of being spies, were acquitted of war crimes but kept in custody as prisoners of war; they had been acquitted of unlawful belligerency, but were still belligerents.Footnote 124 Similarly, many insurgents who surrendered were set free after swearing allegiance to the United States, but “[t]his does not protect from trial and punishment those who have committed crimes which would properly bring them before a military commission or court of law,”implying that, by default, insurgents were entitled to combatant privilege as long as they did not commit other law-of-war or criminal violations.Footnote 125
For MacArthur, this combination of immunity, limited belligerent privilege, and brutal punishment for unprivileged belligerency provided a way to punish guerrillas for their irregular tactics, while also inducing civilians not to cooperate with them. American officials believed that these measures suppressed, if not eliminated, the insurgency in many areas. Indeed, the Judge Advocate for the Philippine District, Stephen W. Groesbeck, claimed in 1901 that as the military commissions handed down more death sentences, there was a “sudden and most gratifying decrease, almost to cessation of all high crimes in some sections where the gallows has been set up.”Footnote 126
Communal Responsibility
Despite these claims, the insurgency persisted in the province of Batangas and on the island of Samar. In the late summer of 1901, a shocking American defeat provided the impetus for further escalation. The new measures, which devastated Filipino communities and caused an outcry in the United States, were again articulated through the laws of war, which were now subjected to novel readings, and further influenced by racial reasoning.
In September 1901, insurgents on Samar attacked and virtually annihilated an American infantry company, taking the soldiers by surprise as they ate breakfast in what they thought was a friendly village. As the press spread horrifying reports of what became known as the “Balangiga Massacre,” American public opinion demanded strong action to pacify the remaining pockets of resistance in Batangas and Samar.Footnote 127 By now, MacArthur had been replaced by Major General Adna Chaffee, who turned to Franklin Bell and Jacob Smith for harsher measures. At first, Bell assumed command in Batangas with Smith as his subordinate, but soon the latter took charge of separate efforts on Samar.Footnote 128 Like MacArthur, these officers looked to the principles of G.O. 100: they believed that “short severe wars are the most humane in the end,” and they sought to “place the burden” of the war on those who aided the insurgents.Footnote 129 Smith declared that his goal was to “create in the minds of all the people a burning desire for the war to cease,”Footnote 130 while Bell's policy was to “make the people want peace, and want it badly,” because “[a] short and severe war creates in the aggregate less loss and suffering than benevolent war indefinitely prolonged.”Footnote 131
To “place the burden” on Filipino civilians, Bell and Smith desired legal authority to detain them, to seize or destroy their property, and even to attack them. This required another round of reinterpretation. Earlier legal debates, as discussed, had focused on which Filipino combatants were legitimate belligerents, which were unprivileged belligerents or war traitors, and which were merely criminals. The concern there was who could be found guilty of what crimes. MacArthur had, in theory, made these determinations based on individual evidence, with the army bearing at least a low burden of proof. Now, Bell and Smith sought the authority to detain all Filipinos in their districts. They were not as concerned with formally trying and convicting them of (war) crimes, as with simply preventing them from aiding the insurgents but also making them suffer for their past support. They sought to impose responsibility on whole communities, and to shift the burden of proof onto the Filipinos themselves.Footnote 132
To this end, on December 24, 1901, Smith ordered that “[e]very native, whether in arms or living in the pueblos or barrios, will be regarded and treated as an enemy until he has conclusively shown that he is a friend … [by] some positive act or acts that actually and positively commit him to us, thereby severing his relations with the insurrectos and producing or tending to produce distinctively unfriendly relations with the insurgents.”Footnote 133 On the very same day, Bell also wrote that he assumed, “with very few exceptions, practically the entire population has been hostile to us at heart,”Footnote 134 and should be treated as hostile unless they undertook “such acts publicly performed as must inevitably commit them irrevocably to the side of Americans by arousing the animosity and opposition of the insurgent element.”Footnote 135
Moreover, Bell believed that the inhabitants of Batangas had all put their hostility into practice. “Inasmuch,” he declared, “as it can be safely assumed that at one time or another since this war began every native in the provinces of Batangas and Laguna … has, with exceedingly rare exceptions, taken some part in aiding and assisting the insurrection against the United States, they have all rendered themselves liable.”Footnote 136 Smith's orders were understood by one of his subordinates to mean that “everybody in Samar was an insurrecto, except those who had come in and taken the oath of allegiance.”Footnote 137 All were belligerents.
This reasoning allowed Bell and Smith to detain Filipinos on a massive scale, even without evidence of individual hostile acts. Bell forced the inhabitants of Batangas—men, women, and children—into squalid “concentration camps,” intended to separate civilians from the guerrillas. This drew on European practice in both Cuba and South Africa.Footnote 138 Both generals were particularly worried about the pro-insurgent sentiments of Filipino elites, especially the clergy, and Smith ordered priests arrested within his area of responsibility. “If the evidence is sufficient,” he commanded, “they will be tried in the proper court. If there is not sufficient evidence to convict, they will be arrested and confined as a military necessity, and held as prisoners of war until released by orders from these headquarters.”Footnote 139 In Batangas, Bell also ordered that “well-founded suspicion” was a sufficient ground to arrest elites and priests and to hold them “indefinitely as prisoners of war.”Footnote 140
Moreover, on December 13, Bell announced that he would apply communal responsibility for assassinations: for every “defenseless American…or native…friendly to the United States Government” killed by insurgents, he would execute one of “the officers or prominent citizens held as prisoners of war,” preferably from the same town as the original assassination.Footnote 141 Local officials who allowed insurgents to be sheltered within their towns were also to be punished.Footnote 142 Bell also authorized the confiscation of all food within his jurisdiction, to be distributed only to those in the towns which he controlled, noting that G.O. 100 allowed him to starve “unarmed hostile belligerents as well as armed ones.”Footnote 143 No able-bodied men were to be allowed to travel outside the towns; those who violated the curfew “will be arrested and confined, or shot if he runs away.” However, “[n]o old and feeble man nor any woman or child will be shot at pursuant to this rule.”Footnote 144 All Filipinos in these areas were now considered enemies, subject to detention, property confiscation, and even attack.
This was seen as militarily useful, but also reflected the Americans’ hardening, and increasingly racialized, view of Filipino civilians.Footnote 145 MacArthur, for example, invoked race to explain the insurgency's stubborn persistence into late 1900: “the adhesive principle comes from ethnological homogeneity, which induces men to respond for a time to the appeals of consanguineous leadership.” Young went further, arguing that the insurgency existed solely because of racial differences.Footnote 146
Young had failed when he argued in late 1900 that race itself made the laws of war inapplicable. Now, a year later, amidst the Batangas and Samar campaigns, race explicitly reappeared, not to deny the law but to interpret it. Bell, for example, reported that “I have been in Indian campaigns where it took over 100 soldiers to capture each Indian, but the problem here is more difficult on account of the inbred treachery of these people, their great number, and the impossibility of recognizing the actively bad from the only passively so.”Footnote 147 Marine Major Littleton Waller, one of Smith's subordinates, was even more explicit: He claimed not to know the identity of a Filipino he had ordered executed, because there were “[s]o many of them, sir. I couldn't tell one from the other.”Footnote 148 “By identifying the inhabitants of Balangiga as traitors capable of any outrage, then extending this definition to all Filipinos,” Louise Barnett argues, “the American military found a rationale for whatever severe measures they wished to employ.”Footnote 149
This was a matter not only of stereotyping or rhetoric, but also of how the law of war was officially interpreted. Racism did specific legal work in specific contexts, to allow particular actions against particular groups (not necessarily all Filipinos, but those in given areas). Both Bell and Smith grounded their orders in legal reasoning, and indeed both had legal experience: Bell had passed the Illinois bar, whereas Smith, despite lacking formal training, had served as a temporary judge advocate in the late 1860s.Footnote 150 Stuart Creighton Miller has observed that Bell's orders in this period were written “much like a lawyer's brief.”Footnote 151
Practicing lawyers agreed with Bell: in the summer of 1904, JAG officers apparently analyzed his December 1901 orders, holding that they were justified by the provisions of G.O. 100 and, in many cases, by the recently signed 1899 Hague Convention.Footnote 152 A 1906 JAG opinion simply took for granted that there had been “certain limited areas where the conduct of the inhabitants led to the conclusion that the entire community was disloyal.”Footnote 153 Therefore, even the most extreme measures formally endorsed by the United States during the conflict were articulated through legal reasoning within the framework of G.O. 100.
For Smith, however, this was still not enough. In the midst of the Samar campaign, he reopened the issue of how to deal with captured insurgents, with the harshest view yet. “I want no prisoners,” he told his subordinate Waller. “I wish you to kill and burn, the more you kill and the more you burn the better you will please me … I want all persons killed who are capable of bearing arms.” Smith went on to clarify that he meant that those in actual hostilities, particularly men and boys more than 10 years of age, were to be killed.Footnote 154 Thus, Smith tacitly endorsed the view that all Filipinos on Samar were belligerents subject to detention. Moreover, he suggested that they were unprivileged belligerents—effectively war rebels—subject to trial for war crimes or even to summary execution with no judicial process at all. Even Evans and Young had not gone quite so far in 1900, and in the end, Waller could not either. Although he summarily executed Filipino guides whom he suspected of betraying him (he was later court-martialed for this), Waller refused to follow Smith's orders. He explained to his subordinates that “we are not making war on women and children,” at least not to this extent.Footnote 155
The Debate at Home
Smith was far from the first American commander in the Philippines to go beyond official interpretations of the law. From the beginning of the conflict, some American soldiers had refused to take prisoners, whereas others, infamously, had used the “water cure”—analogous to modern-day waterboarding—in interrogations.Footnote 156 As early as 1899, Smith told newspapers that he had shot insurgent prisoners (though it is unclear if he invoked any legal authority).Footnote 157 In 1901, his tough talk finally had greater consequences, after he told a reporter that he intended to set Samar ablaze and wipe out its people. A firestorm of public criticism erupted in the United States, as many became outraged by the violence that the United States Army had used against the insurrection: both those measures that were officially authorized, and those that were not. In Washington, Senator Henry Cabot Lodge led his Committee on the Philippines in a series of intensely antagonistic hearings, featuring testimony from MacArthur, Taft, and many other key players.Footnote 158
In the face of this criticism, some Americans who supported the war defended the army by arguing—as some officers in the field already had—that the laws of war simply did not apply to this conflict.Footnote 159 The Philadelphia Ledger contended that “we are not dealing with a civilized people. The only thing they know and fear is force, violence, and brutality, and we give it to them.”Footnote 160 In one exchange between Brigadier General Hughes and Senator Joseph Rawlins during the Lodge Committee hearings, Rawlins asked whether it was “within the ordinary rules of civilized warfare” to burn shacks, to which Hughes replied, “These people are not civilized.” Senator Charles Dietrich then interrupted, asserting that “[i]n order to carry on civilized warfare both sides have to engage in such warfare.”Footnote 161
Theodore Woolsey, professor of international law at Yale, lent academic authority to this view. In the spring of 1901, a force under Brigadier General Frederick Funston, through a bold subterfuge involving the use of enemy uniforms, captured Aguinaldo. Critics charged that Funston had violated the laws of war, so Woolsey prepared a defense at the request of President Roosevelt.Footnote 162 He argued that, under the 1899 Hague Convention, every one of Funston's tactics had been legal, except for the use of enemy uniforms, but that even this would only be illegal if fighting another signatory to the convention, “a civilized power which was itself governed by similar rules.” Woolsey argued that the Americans had, up to this point, applied the laws of war only out of humanity, not out of obligation.Footnote 163 He thus lent scholarly credibility to the contractual view put forward by Young: that the Filipinos were, by their own behavior, ineligible to be treated in accordance with the laws of war. With the Hague Convention now in effect, however, he was able strengthen the argument slightly: the Filipinos’ ineligibility was not just because their guerrilla tactics breached an implied contract, but because they were not party to an express contract: the treaty.
The United States government, however, never adopted Woolsey's position. Instead, as MacArthur and Otis had in the field, officials in Washington reiterated that the law did apply, and that they were complying with it, according to their interpretation. Therefore, Secretary of War Root responded to the Lodge Committee's hearings by issuing a report, Charges of Cruelty, Etc. to the Natives of the Philippines, attempting to demonstrate United States compliance with the law. This 150 page tome published the results of 348 courts-marital of American servicemen (mostly low-ranking) accused of abusing Filipinos, along with accounts of atrocities by the insurgents.Footnote 164
Opponents of the war were unconvinced. The anti-imperialist Philippine Investigating Committee commissioned two prominent Boston lawyers, Moorfield Storey and Julian Codman, to take Root's report head on with their own publication, which was pointedly titled Secretary Root's Record: “Marked Severities” in Philippine Warfare. Footnote 165 They argued that Root and his subordinates had been far too willing to tolerate violations of the laws of war, and indeed had themselves violated those laws.Footnote 166 In particular, they systematically analyzed and rebutted the legal reasoning that Bell had used to classify all Filipinos in certain areas as “presumptive belligerents.”
First, they argued that he had improperly lowered the burden of proof by assuming that “practically the entire population has been hostile to us at heart.”Footnote 167 Reiterating MacArthur's earlier view, Storey and Codman insisted that “[i]t is the overt act, not the inevitable feeling of the conquered” that was relevant.Footnote 168 Moreover, even if it were acceptable to designate whole populations as belligerents, Bell was too quick to punish them indiscriminately for alleged law-of-war violations. G.O. 100, they pointed out, provided that “retaliation shall only be resorted to after careful inquiry into the real occurrence and character of the misdeeds that may demand retribution.”Footnote 169 Likewise, Bell's order to execute captives in retaliation for assassinations was illegal, as was his decision to deprive whole villages of food.Footnote 170
In short, Storey and Codman contended that Bell's legal interpretations were wrong on multiple levels: “Not one of the rules permits a military commander to assume that a given person has been guilty of such offenses, far less to give all his subordinates power to make such assumption, and still less to assume that whole communities are guilty, and to burn, kill, and devastate accordingly.”Footnote 171 To bring Bell's policies home, Codman and Storey turned to the Civil War, as the government itself had, for very different purposes. They asked their readers to “[i]magine the whole population of a Virginia district put to the sword because [Confederate raider John S.] Mosby had surprised a detachment, or Winchester [Virginia] burned because a soldier was found dead in the street.”Footnote 172 These arguments implicitly used concepts of race against the government, as Codman and Storey likely expected that white Americans would be more shocked to imagine these measures being applied to white Southerners than to Filipinos.
The two Boston lawyers went beyond this attack on Bell, critiquing the policies of property confiscation and burning that had been adopted early in the conflict and legitimated by JAG opinions. The army held that such measures were “military necessities,” but to Codman and Storey this was merely the “‘tyrant's plea,’ and would justify anything, if the discretion of the commander is unfettered.”Footnote 173 “[T]he rule,” they wrote, “is to respect private property. The exceptions are the right to tax, and to take property for temporary purposes for the use of the army upon giving receipts. Wherein, then, is found the right to burn houses, to confiscate the property of noncombatants, to hunt and kill people, to lay waste a province?”Footnote 174 For the two anti-imperialist lawyers, war could be conducted lawfully—but this one had not been.
Root disagreed, and even as Root's Record was published in 1902, he took further steps to support his position, including court-martialing slightly more senior officers than before.Footnote 175 He began with Major Littleton Waller. Waller, as noted, was one of Smith's subordinates on Samar, and in the course of the campaign he had summarily executed eleven Filipino guides whom he suspected of disloyalty. Waller argued that they had been guilty, and moreover that their killing had been a military necessity. He was acquitted, partly, Barnett argues, because Americans saw all Filipinos as inherently treacherous.Footnote 176
However, in the course of Waller's court-martial, he revealed Smith's orders (which he claimed to have disobeyed) to kill all Filipino males over the age of 10.Footnote 177 Now Smith himself was put on trial, and he turned partly to the same argument used by Young and Woolsey: his orders were not illegal, because the law did not apply. The law of war “was never intended to apply to an inferior and savage race.”Footnote 178 The court rejected this claim, finding that the law had been applicable, but that Waller had vindicated it by ignoring Smith's orders.Footnote 179 Smith was convicted, but not severely punished. The court qualified the claim that Smith “wanted all persons killed who were capable of bearing arms” by noting it applied only to those “in actual hostilities against the United States” (Codman and Storey argued he had initially included no such limitation).Footnote 180 This made Smith's orders legal, by limiting them only to active belligerents, allowing the court to find that Smith's only crime had been overly heated and “misleading” speech. Therefore, he was convicted of “[c]onduct to the prejudice of good order and military discipline,” and dismissed from active duty.Footnote 181
Several other officers were court-martialed for their role in using the “water cure.”Footnote 182 Among them was Major Edwin F. Glenn, a University of Minnesota Law School graduate who had been a prominent intelligence officer throughout the war, before serving as Waller's defense counsel. Glenn was court-martialled twice: in May 1902, he was convicted for his prominent role in using the water cure; and in February 1903, he was acquitted on charges of unlawfully killing prisoners. In his defense, Glenn argued in part that the water cure was “a method of conducting operations,” and more broadly, that “practically all definitions agree that International Law is made up of certain rules that certain civilized states agree to regard as binding upon them in their relations with one another. Those who do not belong to this international community cannot claim any of its benefits.”Footnote 183
This was the same argument made earlier by Young, and by Woolsey, and the army categorically rejected it yet again. In reviewing and upholding Glenn's conviction, JAG George B. Davis insisted that Glenn's argument “fails completely, inasmuch as it … attempt[s] to establish the principle that a belligerent who is at war with a savage or semicivilized enemy may conduct his operations in violation of the rules of civilized war. This no modern State will admit for an instant; nor was it the rule in the Philippine Islands.” Nevertheless, Glenn's punishment for using the water cure was minimal: 1 month's suspension and a $50 fine.Footnote 184
By the time Glenn's second court-marital concluded, the war in the Philippines had officially ended. On July 4, 1902, President Roosevelt declared victory, pardoning violators of both those laws and the criminal law, with the exception of those who had committed murder, rape, and other severe crimes.Footnote 185 He proclaimed that “insurrection against the authority and sovereignty of the United States is now at an end, and peace has been established in all parts of the archipelago except in the country inhabited by the Moro tribes.”Footnote 186 In November, the Brigandage Act “defin[ed] any remaining Filipino resistance to American authority as ‘banditry.’”Footnote 187 However, military counterinsurgency continued for years against the Muslim Moros, whom one United States general described as “not … enemies but religious fanatics.”Footnote 188 Perhaps because of such religious prejudices, there was little inquiry after the Americans massacred civilians at Bud Dajo in 1906.Footnote 189
Throughout the Philippine–American War proper—from the early days of “conciliatory action,” to MacArthur's harsher policies on unlawful belligerency, to Bell's and Smith's campaigns of destruction, and even the token court-martialing of a few officers—the army had upheld the original United States theory of the war: the Filipino insurgents were fighting for a nonexistent state, but were themselves, by default, legitimate combatants, subject to the laws of war. This does not mean that the army had restrained itself operationally. Enforcement of the law was often lax, and more importantly, officials frequently reinterpreted it to fit their military objectives, racism, opposition to guerrilla warfare, and extreme violence.
After the war, some officers suggested that these interpretations had gone too far (except against the Moros). When an outbreak of rebellion in early 1903 prompted the military to deploy troops to Surigao Province, taking control away from the civil authorities and imposing martial law, Major General George Davis (not the same officer as the JAG) issued a caution. In these operations, he insisted, that there must be “no water-curing or severity that is not plainly authorized without strained interpretation [of the] laws of war.”Footnote 190 It was precisely such interpretation—however strained—that allowed Americans to articulate counterinsurgency through the law, rather than by emphasizing exclusions.
Conclusion
This story of the law of war points to the Philippine–American War's importance in both United States and international history. As other scholars have emphasized, the law's relationship to race was vital in defining the role of the conquered regions within the United States after the Spanish–American War. A series of Supreme Court decisions–the “Insular Cases”—engaged constitutional and racial anxieties to hammer out the status of Filipinos, Puerto Ricans, and Cubans in American law and empire, but at the same time, the United States turned away from further formal conquests.Footnote 191 In the Insular Cases, as in wartime, the United States legitimized empire through official legal interpretation, especially of the Constitution, rather than simply by carving out exclusions, even though these interpretations were heavily colored by racial assumptions.
Likewise, just as the Insular Cases lived on long past that peak moment of formal empire, so did the Philippine–American War's legal legacy. The records of military commissions have provided a body of precedent for military lawyers ever since. This was true of JAG officers concerned about the legal status of potential Axis guerrillas at the end of the Second World War, and more recently those trying post-9/11 terrorism suspects.Footnote 192
That the law of war was so important to American military lawyers during the Philippine–American War—important enough to create this body of precedent—suggests the conflict's broader lessons. The Philippine–American War marked the United States's entry into the world of European imperialism; however, its legal position and legal debates, as traced previously, offer a different picture than what one might expect of the nineteenth century's imperial wars.
Most scholarship on international law and empire tells a story of exclusion.Footnote 193 Many Western legal theorists, in the late nineteenth century, did not recognize non-Western polities as sovereign, and they argued that those polities were, therefore, neither entitled to the benefits of customary international law, nor able to participate in treaty arrangements. John Stuart Mill, indeed, contended that, “[t]o characterize any conduct whatever towards a barbarous people as a violation of the law of nations, only shows that he who so speaks has never considered the subject.”Footnote 194 The 1914 British Manual of Military Law agreed that “the rules of International Law apply only to warfare between civilized nations.”Footnote 195 Creating such exclusions may have been a primary objective of legal theorists, as they could justify greater latitude in both how wars were fought, and why they could be started.Footnote 196 European powers argued that they could use prohibited weapons or tactics against those who resisted colonization, because the latter were either inherently inferior (the racial argument) or they had not or could not adhere to the treaties that created obligations within war (the contractual argument).Footnote 197 One United States Army officer, Elbridge Colby, summed up this view in a 1927 American Journal of International Law article dealing with situations in which “combatants and non-combatants are practically identical among a people, and savage or semi-savage peoples take advantage of this identity to effect ruses, surprises, and massacres.” “[S]trictly speaking,” in such cases an American or European officer “is not bound to observe the precepts of international law against any nation that is not a cosigner of the conventions covering any particular point in question,” though pragmatism suggested that officers would be well advised to use “such rules of justice and humanity as recommend themselves.”Footnote 198
Non-Western polities that were not colonized—such as the Ottoman and Qing Empires—were excluded in a different way. Although scholars often accorded them a greater degree of recognition, the rules that applied to them remained disputed, including by lawyers from those polities themselves. Thus, for example, European scholars and diplomats debated whether the Ottoman Empire could be subject to foreign military interventions aiming to protect its Christian subjects from abuses.Footnote 199
Drawing on such debates, historians have often seen exclusion, justified by ideas of racial or civilizational inferiority, as the dominant legal paradigm for late nineteenth century imperial wars. It was certainly an approach available to United States officers in the Philippines. Indeed, high-ranking politicians and even legal theorists such as Woolsey gestured in that direction, describing the Filipinos as “not civilized” and not signatories to the Hague Convention. United States Army officers also believed that Europeans approached colonial wars this way: recall Brigadier General S.B.M. Young's mention of European wars against those “worse than ordinary savages.”
However, those who actually had to make legal decisions with binding effect—the JAG and officers in the field—consistently ended up rejecting arguments based on exclusion. Instead, they interpreted specific rules to allow specific actions. International law, and in particular the law of war, JAG Davis held, was binding on all “modern State[s].” From Davis on down, officers believed that G.O. 100's particular provisions already gave them the legal resources they needed. They found these resources through specific interpretations of specific provisions, not through broad exemptions or exclusions. Racism played a complex role, influencing not whether the law was applicable, but how it was interpreted: informing what officers saw as “facts,” as when Waller claimed that he could not tell Filipinos apart.Footnote 200
This does not mean that the United States Army restrained itself, and it certainly does not mean that all officers obeyed the laws of war. Much brutality was authorized. Many violations were punished belatedly and halfheartedly, if at all, and under public pressure. But even the behavior that, from a modern viewpoint, appears most objectionable, was often explicitly justified by legal arguments. This occurred not only early in the conflict, and not only after the fact in courts-martial, but at every step of the way, even as United States brutality escalated. Such adaptation was not without its challenges, and it entailed the contentious debates and sometimes radical reinterpretations discussed.
Why did the United States adopt this approach? There were likely several reasons. Lively debates about law and war had a long history in the United States.Footnote 201 As we have seen, many army officers (even outside the JAG's office) had legal training or had practiced law, and they may have been uncomfortable with carving out exceptions from the law. The law provided a way to structure and articulate military action in an unfamiliar environment. G.O 100 itself had, since the Civil War, become “the conventional wisdom of the Army officer corps.”Footnote 202 They had even been seen as fitted to the brutal tactics of the Indian wars after 1863, although many officers did see Indigenous peoples as outside the law. The result was an “ad hoc” system of practices in which “the majesty of the law more often gave way to a mix of tragedy and farce.”Footnote 203
These reasons to cling to legal justifications in the midst of brutal imperial counterinsurgency were particular to the United States, and to its history. But Americans had other motivations that may illustrate broader global dynamics. Symbolically, the United States claimed that conquest brought “civilization” to the Philippines, not only because Americans were inherently more civilized, but because adhering to the law proved that they were more civilized.Footnote 204 Therefore, Smith asserted that “[n]o civilized war, however civilized, can be carried on on a humanitarian basis.”Footnote 205 Dean Worcester, a member of the Philippine Commission, likewise referred ominously to “[s]trict enforcement of the rules of civilized warfare.”Footnote 206 And MacArthur, as noted, saw his December 1900 proclamation as proof of America's civilization and commitment to “civilize” Filipinos. Indeed, Groesbeck, the chief JAG in the Philippines, saw the military commissions as a way to instill “a wholesome fear and respect for law,” supplanting “the time honored and despotic rule of the headman.”Footnote 207 Harsh violence, if legally justified, could still be civilized violence, and could be all the more useful for civilizing the Philippines.
Such an approach was not unique to the United States. In the South Asian context, “even when at its most violent and ‘criminal’, colonialism often sought to steep itself in the language of legitimacy and law.”Footnote 208 Even closer parallels come from several other late nineteenth century wars. The Russian and Japanese Empires both assiduously maintained that their adherence to international law vindicated their claims to be “civilized” “European” empires, and indeed vindicated the rightness of their wars. Russia made this argument against the Ottoman Empire in the 1877–78 Russo–Turkish War, Japan made it against Qing China in the 1894–95 Sino–Japanese War, and both sides made it in the 1904–5 Russo–Japanese War.Footnote 209 In the first of these conflicts, the Russian government even implied that although it might not be obligated to respect the laws of war while fighting the Ottomans, it chose to do so. Applying and complying with the law could demonstrate Russia's superiority.Footnote 210
This might explain the JAG's position, but not necessarily lower-level officers’ consistent attempts to produce legal justifications for even their most extreme actions. They seem to have been committed to using the law, and to have seen value in this. Isabel Hull's study of the German state's position during late nineteenth century imperial conflicts offers a partially parallel, and partially contrasting, case. She argues that German officers saw both colonial and European wars as governed by the same “immutable precepts of warfare,” which gave them much latitude. It seems, however, that German officers were less enthusiastic about the work of legal interpretation than Americans were.Footnote 211 This suggests that the law's role in the Philippines was particularly American, but perhaps also reflective of global dynamics. The law of war could be relevant to imperial wars as more than a static set of constraints to be obeyed, a symbol invoked to justify colonialism, or an obstacle to be avoided. It was also a way to structure and articulate violence itself. Indeed, as legal critics Chris af Jochnik and Roger Normand argue in another context, the law of war could be relevant more by legitimating state violence, than by restraining it.Footnote 212
This study of how and why the United States military deployed the law of war during the Philippine–American War is therefore significant for understanding the role of law not only in this conflict, but in the age of colonial conquests more generally. Generals and JAG lawyers did not simply choose between obeying the law and reasoning around it. Instead, they persistently justified extreme violence by reasoning through the law, interpreting it in light of their racial assumptions and perceived military needs. This offers an important, and perhaps chastening, lesson in the history of international law. In the Philippines—and probably elsewhere—imperial wars were not lawless. But this does not mean that they were any less brutal, and indeed it might make their legal legacy more concerning.
