The maxim nullum crimen sine lege states that there should be no crime committed or a punishment issued, without a violation of the penal code in a country at the time of committing the crime. Only those penalties that are laid for the crime at the time of occurrence can be issued. Sherman was arguably contravening a penal code in the United States by committing atrocities and not complying with special field order 120.
The United States has accepted the jurisdiction of the international criminal court; therefore, the principles are embedded in the national constitution. It can also source its principles of law of war from international instruments like the Rome statute and the European convention on human rights. Finally, the international criminal court can source the laws of war from its written statutes where crimes and their penalties are listed to be used in future cases.
This was in response to criticisms that international law did not mete out specific punishments for violations. An example is where the Nazi war criminals were prosecuted despite the fact that their actions were not contravening domestic law at that time. Prosecutions have also been possible for the officials of German Democratic Republic, who subdivided the country by building the Berlin wall.
Common article 2 of the Geneva Convention applies when there is an international conflict and at least one of the warring countries is bound by the treaty. It applies when two signatories of the convention declare war against each other, armed conflicts without formal declaration of war or where a signatory country declares war against a non-signatory country. It calls for protection of victims of war during international armed conflicts.
In this case, common article 3 would apply. It metes out the rules of war that govern conflicts that are not international in nature. The American civil war is an example of where the common article 3 applies. The southerners waged a war with the north, leading to armed conflict between Sherman’s army and the dissident southerners.
Protection and other rights are to be accorded to the victims of the non-international armed conflict. Sherman’s army was contravening this through their scorched earth policy and by not according the Negroes who were victims of war basic rights like medicare, food and security.
The indictment by the International Criminal Court (ICC) prosecutor for Sherman under article 2 are: destroying the southerners’ food, water and other materials needed for survival through scorched earth policy; threatening to use heavy ordinance on Hardee and his men that would result in indiscriminate attacks on civilians of savannah; not providing protection to victims of the conflict for example women, children and slaves; forceful induction of negro slaves into the army without their consent; using heavy ordinances which pollute the environment in the long run; destroying basic infrastructure such as roads, bridges and railways and lastly, indiscriminate attacks in hostile villages without considering whether they were enemies or not.
The trial chamber is to consider the five counts of crimes against humanity brought against Sherman and other crimes like destroying the environment and infrastructure. The court is to consider the policies employed in the war by Sherman. The prosecutor should provide substantial evidence to the court to show that Sherman destroyed food, water and other resources used by the locals.
He should also provide evidence of forceful induction of slaves into the army, using weapons that can cause harm to civilians, attacks on innocent locals and not according protection to victims of the conflict. The prosecutor will also be tasked with providing evidence beyond reasonable doubt that Sherman’s policies led to the destruction of infrastructure and pollution to the environment.
The counsel of Sherman will provide evidence to the court to show that the actions of his client were not against the domestic laws at that time. It can also argue that the actions of his client were not carried out with a criminal mind. Moreover, he could argue that most people were grateful to Sherman for preventing the division of the country through an outbreak of the civil war.
Most people argued that Sherman distorted the psychology and potential of the southerners to wage war. The trial chamber will consider the evidence provided by either side. It will be the task of the prosecutor to provide evidence beyond reasonable doubt that the crimes committed were mens rea. The International Criminal Court trial chamber will deliver a judgment on a later date based on the evidence given.
General Grant can be indicted by the International Criminal Court on the principle of respondent superior. The principle states that a superior who knows that violations are going to be committed and does not intervene is also liable.
President Lincoln and General Grant had reservations of the methods employed by Sherman but consented. The International Criminal Court prosecutor can bring similar charges as those brought against Sherman. The prosecutor would use mens rea in the sense that he knew that the conduct of Sherman would result in violations but he did nothing to prevent them.