pushing back against that experience in a way that will surprise the way that we have interpreted it. thank you very much. and i will see you all next week. >> you are watching american history tv. all weekend, every weekend on c-span3. to join the conversation like us on facebook at c-span history. >> next on the civil war. confederate captain henry worse wirz was innry charge of andersonville prison camp where 45,000 soldiers died while being cap there.

law professor paul finkelman discusses the trial and theution of henry wirz and establishment of war crimes as a result of the trial. this was part of the 2014 civil war symposium, hosted by the civil war society. >> your next speaker is me. having just introduced myself i will not do it again. i will say that because of the vagaries of the world of the u.s. senate, we will try to get out of here at 4:30 instead of 4:45 and i will speak a truncated version of my talk so that michael moore and burke can have the full, allotted time he has been promised. both of us will be talking about andersonville and the trial of henry wirz. during the civil war, frank leslie illustrated and published

this set of photographs on the front page and as you can see, all of them are soldiers that have just come back from prisoner of war camps, looking had nothing that americans ever seen, and in fact looking like people that americans or the world would mostly not see again until the end of world war ii, when people came out of .laces like auschwitz these were truly frightening pictures and after the war, we began to get other pictures. york,s a soldier from new a recently discovered photograph by a graduate student, a new graduate student at george mason university. this is a man whose feet became infected and his feet were literally cut off by scissors and later they had to use bone

saws to solve the bones off, and along with this picture is an affidavit that he sent to the government about what happened to him. he was at andersonville. this is another person from soldier,ille, another this is actually the same guy being examined in a number of different ways. i will shut these off because i don't think we really want to be staring at them. but i think it is important to understand that when we think wirz, the trial of henry riz we start with these images because what americans saw at the end of the war as the prisoners came back from the that, where horrors seemed unbelievable. andersonville was the worst of the prison camps. approximately 45,000 u.s. soldiers were held at andersonville, approximately

-- died while they were held at andersonville. henry wirz was arrested and tried. jail, oneas held in of his complaints was that his wife was not allowed to visit him as often as he wanted. this was a man who clearly had a sense of entitlement that seems completely disconnected to what he was on trial for, and the way that he treated prisoners in andersonville. tuesday night, i playoffs on that. well u.s. soldiers were prisoners at andersonville, women from the area tried to bring them fresh vegetables because confederate southern women saw what was happening to the prisoners at andersonville and they were shocked by the horror of it, there are letters were they say that even though these people were evil yankees, nobody should be treated like this. when not allow

them to bring fresh vegetables to the soldiers who were incarcerated. -- most of them had been in the camp and the kind is by all standards of a modern trial with due process, a train wreck. it is not a legitimate trial the way that we would normally hold trial, the evidence is weird, for example, the number of soldiers that testified that they saw him personally kill soldiers on a particular day, and some of these particular days are days when he was in fact not in the camp because he was on sick leave. we have a trial where it is easy to pick apart the trial, and say that the trial of henry wirz is not a legitimate trial, this is a trial of vengeance,

vengeful northerners taking on who of courseain incarcerated people who ended up of the like this, one questions that we should ask about andersonville, is not why wirz was tried, but why is he the only one who was tried, and one thing we want to think about when we think about the end of the wirz trial but the failure to try a certificate number of other confederate leaders for what we would today describe as war crimes. one of the problems with the jurisprudence of post-civil war america is that no one has a conception of really what a war crime is. trial, theyut on want to put him on trial for murder. you have to prove that he

murdered prisoners of war himself. is fairly strong evidence that he shot prisoners of war, and there is fairly strong evidence he may have simply killed or ordered killed the summary execution -- may have ordered the summary execution of people for no good reason at all. but what this really is is the the concept of four crimes and crimes against humanity, and the idea that some people can be tried not for what they did, in the direct sense of killing people, but rather for their leadership and the crimes commission in creating circumstances that lead to the deaths of -- in this case thousands of people who needlessly died. standards of the nuremberg after world war ii, you would have to prove that the not seize --

nazis or eichmann in israel, you had to prove they have personally put people in a gas chamber and after world war two we no- world war longer had to do that. i will go to the trial itself and talk about the crime and talk about what he is on trial for. before the civil war the united states army had something as the u.s. -- known as the u.s. articles of war. they essentially followed the traditional, well understood customs of warfare at the time. is of the customs of warfare the understandings and usages that were accepted by all americans since the revolution that had been propagated by the military over and over again including the general regulations of the army by secretary of war john c calhoun in 1821.

all of these rules said you had to treat prisoners of war humanely, you had to provide them with food and shelter and you could not summarily execute them. and every one of the leading confederate officers and indeed almost all the confederate officers, because most of them are west point graduates had studied these rules and learned about these rules and had applied these rules why they -- while they were in the united states army. the confederate government adopts the regulations of the army of confederate states and among other things, when they adopt these regulations they adopt verbatim in the u.s. articles of war. the existing rules on how you treat prisoners of war in 1860 are the same for the confederate army in 1865. they had changed for the united states because during the war, the united states issued the code, written by francis

lieber, he had spent most of his his in north carolina -- code sets out against further rules for the treatment of prisoners of war, but they are not substantially war, but they are not substantially different than existing rules. the only difference is the united states is now explicitly codified a more -- a few more rules and the united states has made it clear it expects its soldiers and its enemies to abide by these rules. well the confederates can say, we are not under your code, the confederates were certainly aware the lieber code was out there and could be used against them. generalheard talk about

sherman. he marches to georgia under the lieber code and there are times when he orders the execution of his own troops for violating its. there are northern troops, for instance -- sherman's office was finding a covered wagon full of things american soldiers had taken from southern homes to ofd sherman orders the trial everyone connected with this wagon and he simply burned the entire wagon. he does not know who they belong to, but they are not going to american soldiers. and as we learned earlier today, the lieber code protects scientific instruments, books, etc.. after the american revolution, americans contribute --

complained about the way the pow's. treated american after the war, americans, particularly southerners, complained about the way a british treated americans captured during the war of 1812. andersonville, as at any of these camps, you could be certain there was a reasonably high death toll because of disease, because of the not very well understood ways in which you have sanitation in a prisoner of war camp, because prisoners of war came wounded. but there were certain things that happened in andersonville that do not happen anywhere else. one of them was the water supply. andersonville is built downstream from a confederate military camp. the confederate military camp uses the river that runs through

the andersonville risen as a sort of open latrine. so the creek that is going through andersonville increasingly becomes an open sewer. the water is polluted. and by the end of the war, the only marginally freshwater in the stream is in the very center of the stream. if you wade through the muck, the human waste and pollution coming down from the confederate military camp and to reach into the middle of the river, you can get freshwater. alongn wirz puts ropes the river to prevent people from reaching the middle of the river to shoots his soldiers to kill anyone who reaches over the rope to get freshwater. prisoners in andersonville have a choice. either drink polluted water filled with human waste or they could risk getting shot trying

freshwater. this is example of the kind of behavior of captain wirz that rises to the level of a war crime. similarly, wirz builds other barriers around the cap with explicit orders to shoot to kill anyone who crosses these barriers, even though these barriers seem to have nothing to do with what might be considered an escape. what they do do, of course is provide the opportunity to shoot prisoners whenever you want. the food supply, which leads to the starvation, the cadaver like survivors we just looked at -- the food supply is, of course, an issue. , lost causeswirz dorians, people who want these south to rise again constantly the best he could

under terrible circumstances because the south is starting. but if the south was starving, why were general sermon -- general sherman's troops eating better than ever before? is full ofis georgia food. there is not starvation in georgia. there are southern troops that are not getting enough food. that has to do with the complete and total mismanagement of the army. it has a lot to do with jefferson davis's utter incompetence as president of the confederacy. it is not the lack of food in the south. it is a question of how you get food from north carolina and georgia and mississippi to be troops. is in south georgia where food is available. food could have been commandeered. food could have been bought. the local women who simply want to bring fresh vegetables to the starving prisoners in andersonville could have been allowed to bring the food or

they could have brought them to the camp and the camp could have brought -- camp officers and soldiers could have brought them to the prisoners. freshwater could have been obtained in a variety of ways, one of which was to order the troops upstream to stop using this creek as a latrine. the other thing would have been to take a detail of prisoners every day and march them upstream, fill large barrels with buckets of water and bring them down. prisoners could have marched all day long up-and-down bringing water. you would have freshwater. wirz does not do any of those things. instead he thinks of new ways to preventrisoners and them from getting basic nutrition and any kind of basic health. it strikes me when we think about andersonville, we need to think about the notion of a war crime and the notion of the duty that you all to soldiers who you have captured.

part of the horror of andersonville goes to the exchange of soldiers. the lost cause history on the grantge of prisoners is cynically decides he does not need to exchange prisoners because he has more troops than the confederates and by exchanging prisoners or parole in prisoners -- which means they cannot reenlist in the army -- he will increase confederate troops, which will only lengthen the war. however, that is not grant's position at all. he is happy to exchange prisoners for prisoners, provided the confederates will exchange all prisoners of war. the confederate government, led , withretary of war set in the approval of jefferson davis and the approval of robert e lee ee and the entire

command say weh refuse to exchange black prisoners of war because we refuse to think of them as soldiers. in fact what the confederate army does for a short while is to enslave black prisoners of war, which is again a violation of every known rule of war at the time and is a throwback to the roman empire. and in fact if you add to this jubal early's incursions twice into pennsylvania where he spends his time hunting down blacks to bring them back to the south, the confederate army starts to look like some weird the -- modern version of roman empire going to hunt slaves in gaul or among the germanic tribes. or even more weirdly, it looks like a precursor of the nazis, who spend their time hunting

juice and ukraine and russia, rather than fighting the russian in ukrainenting jews an and russia, rather than fighting the russian army. so, i think the question of war crimes and the question of henry wirz is not does henry wirz richly deserve to be hanged? capital punishment, but i am a twin he first century person, not a mid-19th-century person. had i been a mid-19th-century person, i probably would not have been against capital punishment, certainly not for war criminals like wirz. if you believe in capital punishment, there are very few people in american history who wore richly deserve to be at the end of a rope then henry wirz, but if there were some they would have included jubal early,

nathan bedford forrest for the massacre of black soldiers at fort p lo, they would have commandersrhaps the of the confederate army -- not , but ratheraitors for perpetuating war crimes against black soldiers, white p.o.w.'s during the civil war. as i leave you with the stars, we have a few minutes for questions. you with these thoughts, we have a few minutes for questions. [applause] we have an anxious hand here in the middle row. >> wonderful talk. it may be perfectly true that conditions that andersonville confederatehan for p.o.w.'s at point lookout and foretell myra, but there was no question the union could have more easily divided better treatment, but did these mist did thet -- mistreatment of confederate p.o.w.'s in northern camps rise

to the level of war crimes? think -- let me first say i am not an expert on northern pow camps. from what i have read, it does not seem to me that the northern camps are led by such creative and inventive people as hindering wirz and people who seemed desirous of having the outcome. i do not blame all of the deaths at andersonville on henry wirz. in the best pow camps in the civil war -- if you look at the death of united states army soldiers who are in u.s. army camps, the death rate is very high. sanitation is lousy, disease is rampant. differences a huge between what is going on in those camps, and what i think is going on in l myra, and what is going on in andersonville.

there are no confederate prisoner pictures i have ever seen that look like the people coming out of andersonville. they do not look like they are coming out of dock how -- dachau. paul, you are uncharacteristically shy at the end of your talk -- about thealked confederate commanders who deserved execution, you seemed leemply that robert e. would be culpable for the chasing of blacks, for war crimes? >> you have twoperiod of generally --you have two perio generally. either he does not anything -- he does not know anything about jubal early and can't do anything about it or lee is complicit when early spin

through four days capturing blacks and enslaving them and when they retreat from gettysburg, these black prisoners are taken back with them. either one or the other. rule of law of war of the mid-19th century, it is against the rule of war to enslave civilians. it is against the rule of law to and bribery in order not to destroy a town, as again jubal early does and some other commanders do. and my assumption is lee knows this is going on. maybe he is incapable of doing anything about it, which of course raises a different kind question,use history the incompetent generally. but i think he does know what is going on and is competent and does not have any problem with this. but i preempted your question maybe or was that it?

>> therefore he is culpable and should have been executed? >> i think it is reasonable they could have put him on trial for this. i don't think they would have. i think politically it would not have happened -- i think is sonly bedford forrest clearly more culpable and could have been put on trial and could have been executed and would have deserved it. again, we're talking about how you bring the war to an end. one way of bringing the war to an end is to have a soft piece. -- soft peace. everybody at this conference has talked about the catastrophe of the soft peace. if lincoln was president, would it have been better? i do not think the ku klux klan would've been any different if lincoln had not been assassinated. however, one wonders what

would've happened to the ku klux klan if nathan bedford forrest had been hanged before he could organize the ku klux klan. one wonders if in fact a harsher , in theght not have end, brought about a more lasting and just peace. it is at least something to speculate. one of the models is the reconstruction of germany. after the second world war, the german people had no doubts what the cause was, at least for their highest leaders, of war crimes. criminal, he a war is a low-level war criminal. there were others. showedpicture that you to begin were taken of people after the camp had been liberated. by theh was known northern public or the government about andersonville and what was happening before?

>> i don't know. the histories are in dispute on this. beingare not people exchanged out of andersonville. while there are some people escaping and there are rumors going on -- but i don't know -- second comment to that, you discussed at the ladies and their vegetables. how much was known in and around andersonville? >> enough to know -- >> it is beginning to sound an awful lot like germany. difficulthese are analogies to make, particularly 11 was in baton rouge -- when rouge. in baton i think there are analogies of the american civil war americans have never wanted to come to terms with. the is interesting about

literature on andersonville, most of it is written by what i would cause -- call lost cause of apologists. and yet come a it is the lost cause apologists who talk about the local women trying to bring vegetables to the poor starving union soldiers. for sayingn wirz these local women must be traitors because they want to bring vegetables to the union soldiers. so, i think yes, people at least within the vicinity of andersonville have to know what is going on. the stench alone must have been enormous. that is the other thing. to imagine how you could get anywhere near andersonville without being fully aware that there is a horror show there. one more hand here. >> [indiscernible] >> could you wait for the -- historye interested in

-- about the holocaust, there is the scene in poland. the camp was in the distance. the gas chambers. they interviewed all of these people -- no, they did not smell anything, they did not know anything. the great olfactory collapse in poland. time, and as i said for all of the other papers, i well, ane qualifies as good paper is where you can't answer all the questions. [applause] [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2014] are watching american history tv, 48 hours of american history programming on c-span3. follow us on twitter, @cspanhistory, to keep up with their schedule and the latest history news. >> this year c-span