On Monday, June 1, 2020 war veteran and junior Senator from Arkansas, Attorney Thomas Bryant Cotton, used the phrase “no quarter” and has been at the center of controversy. I, like many others, wondered what he meant, so I decided to get a better understanding of the phrase.
Obviously, it couldn’t be about money–there are plenty of 25-cent coins in circulation these days.
The song, “No Quarter” by Led Zeppelin kept popping up in my Google search, but upon listening, didn’t seem to be particularly helpful.
Then my mind leaped to my youth and the old historical fiction movies I had seen about people being quartered in medieval times. I seemed to remember something about enemies of the crown being punished by having 4 horses pulling their limbs apart. I looked it up, and sure enough, the punishment consisted of five parts: First, the perpetrator was dragged to the place of execution. Second, he was hung by the neck for a short time. Third, he was eviscerated and his entrails burned while he watched. Fourth, he was decapitated. Fifth, his five body parts were cut up and displayed in various areas in the land to dissuade other potential wrongdoers. Parts of this process were pictured in the tv-series Reign and in the film Braveheart. So NO quarter would be good, right? But that meaning, from the 1200s, didn’t seem to fit in the modern era.
So I moved up several centuries to the 17th and 18th centuries. It seems the phrase “no quarter” was popular in maritime circles ala Blackbeard and other pirates. To pirates, it meant no mercy, meaning those who surrendered or were captured would be killed! But Cotton is a government official, not a pirate, right?
Mr. Cotton is also a Harvard-trained lawyer, so perhaps he was referring to the U. S. Constitution? The Third Amendment talks about quartering, or housing, of troops. ”No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.” According to the National Archives, “The Third Amendment prevents government from forcing homeowners to allow soldiers to use their homes. Before the Revolutionary War, laws gave British soldiers the right to take over private homes.” Somehow, this meaning didn’t seem to fit.
Ok, let’s go to Cotton himself, and look at context. He tweeted:
“Anarchy, rioting, and looting needs to end tonight. If local law enforcement is overwhelmed and needs backup, let’s see how tough these Antifa terrorists are when they’re facing off with the 101st Airborne Division. We need to have zero tolerance for this destruction.”
In a separate tweet, he wrote:
“And, if necessary, the 10th Mountain, 82nd Airborne, 1st Cav, 3rd Infantry—whatever it takes to restore order. No quarter for insurrectionists, anarchists, rioters, and looters.”
These tweets have been read in combination with Mr. Cotton’s New York Times Op-Ed about the violence associated with large-scale demonstrations for racial justice in the United States which states “One thing above all else will restore order to our streets: an overwhelming show of force to disperse, detain and ultimately deter lawbreakers. … it’s past time to support local law enforcement with federal authority. … and in some cases the rioters still outnumber the police and Guard combined. In these circumstances, the Insurrection Act authorizes the president to employ the military “or any other means” in “cases of insurrection, or obstruction to the laws.””
This makes it clear that Mr. Cotton is advocating that the federal military show no quarter to American citizens who are insurrectionists, anarchists, rioters, and looters. Clearly the context is a military one.
Without stopping to examine the practical implications (including loss of constitutional rights and the possibility of deadly harm) for peaceful demonstrators, innocent children and bystanders who might be accompanied or infiltrated by said insurrectionists, anarchists, rioters, and looters, I wondered if this approach would be legal. According to a tweet by journalist David French, “A no quarter order is a war crime, prohibited even in actual insurrection since Abraham Lincoln’s signed the Lieber Code in 1863. Such an order is banned by international law and would, if carried out, be murder under American law.”
Rule 46 of the International Committee of the Red Cross (ICRC) study on customary international humanitarian law (IHL) states that it is an international war crime to even threaten that there will be no survivors in domestic as well as international military operations. A no quarter order is a violation of the Geneva Convention.
Rule 46. Ordering that no quarter will be given, threatening an adversary therewith or conducting hostilities on this basis is prohibited.”
See https://ihl-databases.icrc.org/customary-ihl/eng/docs/v2_rul_rule46 citing The US Field Manual (1956), The US Manual for Military Commissions (2007), Part IV, Crimes and Elements, and The US Manual for Military Commissions (2010), Part IV, Crimes and Elements. Also see Customary International Humanitarian Law by Jean-Marie Henckaerts and Louise Doswald-Beck, Vol. 1, pages 161-163.