A few days ago Ben Wittes posted on the role of Law of Armed Conflict (LOAC) in Henry V. I was a bit mystified by the failure to mention the siege of Harfleur, since I think it’s critical to interpretation of Henry’s (and Shakespeare’s) position on the laws of war. To revisit:
How yet resolves the governor of the town?
This is the latest parle we will admit;
Therefore to our best mercy give yourselves;
Or like to men proud of destruction
Defy us to our worst: for, as I am a soldier,
A name that in my thoughts becomes me best,
If I begin the battery once again,
I will not leave the half-achieved Harfleur
Till in her ashes she lie buried.
The gates of mercy shall be all shut up,
And the flesh’d soldier, rough and hard of heart,
In liberty of bloody hand shall range
With conscience wide as hell, mowing like grass
Your fresh-fair virgins and your flowering infants.
What is it then to me, if impious war,
Array’d in flames like to the prince of fiends,
Do, with his smirch’d complexion, all fell feats
Enlink’d to waste and desolation?
What is’t to me, when you yourselves are cause,
If your pure maidens fall into the hand
Of hot and forcing violation?
What rein can hold licentious wickedness
When down the hill he holds his fierce career?
We may as bootless spend our vain command
Upon the enraged soldiers in their spoil
As send precepts to the leviathan
To come ashore. Therefore, you men of Harfleur,
Take pity of your town and of your people,
Whiles yet my soldiers are in my command;
Whiles yet the cool and temperate wind of grace
O’erblows the filthy and contagious clouds
Of heady murder, spoil and villany.
If not, why, in a moment look to see
The blind and bloody soldier with foul hand
Defile the locks of your shrill-shrieking daughters;
Your fathers taken by the silver beards,
And their most reverend heads dash’d to the walls,
Your naked infants spitted upon pikes,
Whiles the mad mothers with their howls confused
Do break the clouds, as did the wives of Jewry
At Herod’s bloody-hunting slaughtermen.
What say you? will you yield, and this avoid,
Or, guilty in defence, be thus destroy’d?
Here’s your Branagh (can’t find an acceptable excerpt from the Olivier):
I think it’s fair to say that there’s a lotta Yamashita Doctrine stuff going on here.
Hal is using the threat of brutal depredation to in order to coerce the surrender of the city, which continues to have the capacity to resist. However, Henry’s speech is ambivalent with regard to his own responsibility for this destruction; on the one hand he declares that the next attack will result in the destruction of the city and its people. On the other, the claim “whiles yet my soldiers are in my command; whiles yet the cool and temperate wind of grace o’erblows the filthy and contagious clous of heady murder, spoil, and villainy” suggests that the destruction will be the inevitable result of a final assault, regardless of command intent. The complications of evaluating command responsibility for war crimes (and it seems quite clear here that Henry is comfortable in declaring war crimes will be committed as the result of the next assault) were not lost on late medieval/early modern jurists; according to my extensive research (I read the Wikipedia page), one of the first cases to prefigure the “Yamashita Doctrine” took place in 1474. In general terms, there are distinctions between the responsibility of commanders who order war crimes, those who allow war crimes to take place, and those who don’t take sufficient proactive steps to prevent the commission of war crimes (Yamashita himself is a complicated case, falling at best into the third category). I think it’s fair to say that Henry is implicating himself on at least the second and third grounds, and probably on the first. If you watch carefully, you can almost see Henry’s JAG advisor having an aneurysm during the speech.
Anyway, Henry’s threat to destroy Harfleur provides context for the decision to hang Bardolph, whose crime takes place (in the play) in the immediate aftermath of the conquest of the city. Here’s Henry on Bardolph:
We would have all such offenders so cut off: and we
give express charge, that in our marches through the
country, there be nothing compelled from the
villages, nothing taken but paid for, none of the
French upbraided or abused in disdainful language;
for when lenity and cruelty play for a kingdom, the
gentler gamester is the soonest winner.
To me, this seems more of a political than a legal decision (to the extent we can disaggregate). Henry doesn’t want the France brutalized because he wants France pacified, and in any case I doubt that extant LOAC (or modern LOAC) have much to contribute on abuse through disdainful language. We can gather that Harfleur’s surrender insulates the city from the depredation to which it would have been subjected following an assault. However, it doesn’t seem to me that Henry believes that the extant LOAC provide any broad civilian immunity beyond what is contracted in that specific surrender negotiation; it is unlikely that Bardolph or anyone else would have hanged in the wake of the threatened, destructive final assault against Harfleur. It’s also worth noting that Bardolph is hanged for stealing from a church, which is perhaps too specific an offense to bear the general LOAC weight we want to put on it.
Another thought; the purpose of the hanging of Bardolph isn’t to make an interesting observation about LOAC, or even to clarify Hal’s position with regard to depredations against French civilians in the war zone. Rather, it’s to demonstrate that Hal has fully grown into King Henry V, so much so that he allows the execution of one of his former friends to go forward. We can read Henry’s lack of mercy in a couple of ways. On the one hand, we see that Bardolph earns no reprieve by virtue of his former association with the prince. On the other, it’s not altogether unreasonable to wonder if Henry would have granted mercy if Bardolph had not been Bardolph. Hal’s break with Falstaff was not in any sense pleasant, and we could read King Henry’s decision to proceed with the execution as representative of his break with Prince Hal rather than in any commitment to LOAC. As Ben notes, modern productions tend to handle this scene as filled with pain and regret on Henry’s part, but I tend to think that’s wrong; Bardolph is considerably less likely to receive Henry’s mercy than an anonymous soldier. I’ve never thought Henry embarrassed by Bardolph, or particularly inclined to shut Bardolph up; rather, the execution of Bardolph demonstrates the full maturity of the King and the fullness of his break with his old life. If you don’t read this scene as “Henry is so serious about protecting his French subjects that he’s willing to execute an old friend,” but rather “Henry takes the opportunity that Bardolph provides to demonstrate to all his seriousness as a monarch,” then the implications for observation of LOAC are somewhat less significant.