In Retrospect: Intent and War Crimes in the Life and Times of Wilton B. Persons.

Abstract

This thesis studies the potential uses of military memoirs in the prosecution of war crimes. Drawing on the work of the political theorist Carl Schmitt, I analyze the memoirs of Wilton B. Persons, a Judge Advocate General of the US Army, who during his long career, was responsible for prosecuting war crimes. I show that Schmitt's three forms of juristic authority--concrete order, normativist and decisionist--are a useful framework for unpacking the frequently occurring ethical concerns in this memoir. It establishes that virtue or virtuous intent in the writings of Persons and other senior army officers is located at the intersection of these three styles of juristic thought. On the other hand, vicious intent in an individual soldier, originates in the decay of the political and cultural order, or when Schmitt's three juristic discourses were disjointed. In other words, specific criminal intent of the soldier--a term derived from the 1948 Geneva Convention on the Prevention and Punishment of the Crime of Genocide--came from the activation of latent, general intent embedded in the decaying or disjointed political culture. An analysis of Person's memoir--the work of a man who observed and prosecuted many of the accused--provides us with glimpses of this transformative process. Such an analysis, by sketching the mindset from which specific criminal intent of war criminals emerged, could prove useful in their prosecution. By understanding the extent and limits of soldier agency, it could guide prosecutors in their interrogation of the accused. In addition to potentially helping prosecute war criminals, this thesis, by using the ideas of a legal theorist as an analytical grid, suggests that military memoirs have an underlying legal structure. Scholars working the field of war and memory studies, keen students of memoirs, might find this insight useful. Understanding the workings of this legal structure--consisting of Schmitt's three juristic discourses--could help them re-formulate the meaning of myth in their field. Instead of seeing myths as lies and imaginative half-truths, they could see them as symptoms of individual pathologies and larger, political turmoil. Finally, by studying a case in which law influences politics and culture, i.e. war crimes prosecution structures the memories of Persons, this thesis argues against the general assumption in war and memory studies, that law is influenced by culture and politics. This latter causal link, by subordinating law to amorphous and timeless phenomena, is likely to reduce the agency of the accused and complicate the task of identifying specific criminal intent. Wilton B. Persons on the other hand knew the law and expected the same from the accused.