Jus in bello, Rape and the British Army in the American Revolutionary War

Abstract

This essay offers a case study in jus in bello in the American Revolutionary War by focusing on responses to sexual violence committed against American women by soldiers in the occupying British army and their Loyalist auxiliaries. Two main bodies of sources are juxtaposed in order to explore the contexts and manner in which jus in bello was adjudicated: British courts-martial and American Congressional investigations documenting British and Loyalist breaches of the codes of war. By putting the fragmentary evidence of instances of rape in the context of contemporary legal and sociocultural practices of sexual violence in peacetime, as well as of the British army's disciplinary regime, we can elucidate the horizon of experiences and expectations against which survivors, assailants and prosecutors acted. The British army disciplined some soldiers for sexual offenses that violated military law and the codes of war, and it executed a few of them at a time when even their home society featured very low prosecution and conviction rates for the capital crime of rape. Prosecutorial discretion on the part of individual British officers helps explain the discrepancy between the formal law of rape and its application in the theater of war. The inconsistency in British responses to rape in turn supported American allegations that the British violated jus in bello. The new American state invested in unprecedented legalistic, empiricist efforts to expose enemy violations of the codes of war. In their quest to assert national difference and to claim the moral high ground vis-à-vis Britain, and to establish America's place among the ‘civilized’ nations of the world, the Revolutionaries both reflected existing notions of jus in bello and sought to define them further. The ethical dimension of jus in bello thus resided in formal law, in the choices made by British officers concerned with force discipline, military–civilian relations, and the codes of war, as well as in the American state's forensic exposure of the enemy's illegitimate violence.