pity of war. this is what olin -- oh when -- owen is known for. he writes -- would probably not like everything we said here today. my gain from it --my lost friends i knew for such a short time and the impoverishment of life, referring directly to the poetry if not the pity, to hell with your generalized pity. it is not the fear he knew or the pains, but the faces and the few words of the men who were with him. we should embrace. just when we think we have a narrative worked out, just when we think we have a way of explaining in short or long, sentences, what a historical source is, to summarize this in an easier and convenient way,

that we will always find people who are representing that war or 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 was in -- henry wirz was in charge of andersonville prison camp where 45,000 soldiers died while being cap there. law professor paul finkelman discusses the trial and execution of henry wirz and the 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.

>> you're watching american history tv on c-span three. to join the conversation, like >>on facebook very wirz -- facebook. >> confederate captain henry wirz. as a concept of war crimes established as a result of the talk, this half hour long is a portion of the 2014 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 like nothing that americans had 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 places like auschwitz. these were truly frightening pictures and after the war, we began to get other pictures. this is a soldier from new york, 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 andersonville, another soldier,

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 about the trial of henry wirz, we start with these images because what americans saw at the end of the war as the prisoners came back from the south, where horrors that seemed unbelievable. andersonville was the worst of the prison camps. approximately 45,000 u.s. soldiers were held at andersonville, approximately 45,000 of them -- died while they were held at andersonville. henry wirz was arrested and tried. while he was held in jail, one 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. of course, wirz when not allow them to bring fresh vegetables to the soldiers who were incarcerated. at his trial, -- most of them had been in the camp and the trial is by all standards kind 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 this poor captain who of course incarcerated people who ended up looking like this, one of the 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 war is not 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. when he is put on trial, they want to put him on trial for murder. you have to prove that he

murdered prisoners of war himself. there 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 beginning of 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 of -- commission in creating circumstances that lead to the deaths of -- in this case thousands of people who needlessly died. to apply the standards of the wirz trial in 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 roman to -- world war two we no 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. one of the customs of warfare is 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 liber code, written by francis lieber, he had spent most of his

life in north carolina -- his code sets out against further rules for the treatment of prisoners of war, but they are not substantially different than the existing rules. the only difference is the united states is now explicitly codified a few more rules, and the united states has made it clear that they expect their soldiers and their enemies to abide by these rules, and while the confederates could say that we are not under the lieber

code, the confederates were certainly aware that the code was out there, and the code might be used against them. by the way, we heard a marvelous talk about general sherman. general sherman marches through georgia under the lieber code, there are times and he orders the execution of his own troops were violating the code.

sets up again further rules for the prisoners of 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. we have heard talk about general 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 read sherman orders the trial of 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 belong 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 british treated american pow's. after the war, americans, particularly southerners, complained about the way a british treated americans captured during the war of 1812. at 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. captain wirz puts ropes along the river to prevent people from reaching the middle of the river and orders his soldiers to shoot 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 to reach 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. defenders of wirz, lost causes dorians, people who want these south to rise again constantly say wirz did 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? the reason is georgia is full of 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. but wirz is 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 harass prisoners and prevent 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 exchange of prisoners is grant 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 by secretary of war set in, with the approval of jefferson davis and the approval of robert e lee -- robert e. lee and the entire confederate high command say we 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 mars -- modern version of the 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 army -- hunting jews in ukraine 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? i am against 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 included perhaps the commanders of the confederate army -- not for being traitors, but rather 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. -- as i leave 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 were worse than for confederate 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 treatment -- did the mistreatment of confederate p.o.w.'s in northern camps rise to the level of war crimes? >> i do not 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. but there is a huge difference 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 -- when you talked about the confederate commanders who

deserved execution, you seemed to imply that robert e. lee would be culpable for the chasing of blacks, for war crimes? >> you have twoperiod of generally --you have two periods of 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. by every known 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 ask for payment 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 of lost cause history question, 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 certainly bedford forrest is so 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 peace might not have, in the 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. while wirz is a war criminal, he is a low-level war criminal. there were others.

>> the picture that you showed to begin were taken of people after the camp had been liberated. how much was known by the northern public or the government about andersonville and what was happening before? >> i don't know. the histories are in dispute on this. there are not people being exchanged out of andersonville. while there are some people escaping and there are rumors going on -- but i don't know -- >> my 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. >> well, these are difficult analogies to make, particularly 11 was in baton rouge -- when one was in baton rouge. i think there are analogies of the american civil war americans have never wanted to come to terms with. what is interesting about the 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. they condemn wirz for saying 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. it is hard 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 -- >> anyone interested in history -- 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