Custer at the Little Bighorn: A War Crime Before Its Time

The Battle of the Little Bighorn in June 1876 is often remembered in American folklore as “Custer’s Last Stand.” In the dominant narrative, Lieutenant Colonel George Armstrong Custer is portrayed as a doomed hero, overwhelmed by superior numbers of Lakota Sioux, Northern Cheyenne, and Arapaho warriors. Yet when the events are viewed through the framework of modern international humanitarian law, Custer’s actions cannot be romanticised. His campaign was not a battle in the strict sense, but an armed assault on a civilian village. In that light, the Little Bighorn becomes not simply a military defeat, but evidence of war crimes committed under the banner of colonial expansion.

Brian AJ Newman, LLB - History Enthusiast

Legal Framework: Defining War Crimes

International humanitarian law — codified in the Geneva Conventions of 1949 and their Additional Protocols — prohibits attacks on civilians and requires distinction between combatants and non-combatants.[1] The Rome Statute of the International Criminal Court (1998) further defines war crimes to include:

• Intentionally directing attacks against civilians not directly participating in hostilities (Article 8(2)(b)(i)).

• Intentionally attacking civilian objects, such as homes, villages, and cultural sites (Article 8(2)(b)(ii)).

• Intentionally destroying or seizing objects indispensable to the survival of the civilian population (Article 8(2)(b)(xxv)).

• Forcibly transferring or displacing civilian populations (Article 7(1)(d)).

While these instruments post-date the 19th century, their principles reflect long-standing customary law, including jus in bello traditions that existed at the time. Applying these standards retrospectively exposes Custer’s conduct as falling squarely within the scope of prohibited acts.

The Washita Massacre: A Precedent for Atrocity

Eight years before Little Bighorn, Custer led the 7th Cavalry in the dawn attack on Black Kettle’s Cheyenne village at the Washita River (1868). Women and children were killed alongside warriors, and survivors were taken as hostages. Reports from the field describe the burning of lodges, destruction of food caches, and mass killing of over 800 captured horses — acts intended to cripple the community’s survival.[2] This pattern of indiscriminate violence set a precedent. Far from being an aberration, Little Bighorn was the continuation of a military doctrine that treated Indigenous communities themselves as legitimate targets.

Treaty Violations and Colonial Objective

The United States had bound itself under the Fort Laramie Treaty of 1868, which guaranteed the Black Hills to the Lakota Sioux.[3] When gold was discovered in the region, the treaty was summarily ignored, and Indigenous peoples were ordered onto reservations under threat of military force. The 1876 campaign, of which Custer was a principal actor, was thus not a defensive operation but an offensive war of dispossession. Under modern standards, this reflects a policy of forced displacement and persecution, both recognised as crimes against humanity under Article 7 of the Rome Statute.

The Attack on the Village: Indiscriminate Warfare

Custer’s scouts warned him that the encampment at the Little Bighorn River contained thousands of people — including large numbers of non-combatants.[4] Despite this knowledge, Custer chose to divide his regiment into smaller detachments and press the attack. This decision, reckless from a tactical standpoint, was also a deliberate assault on a civilian settlement. Women were tending to daily tasks, children played near the river, and elders rested in their lodges. By launching an attack on such a community, Custer’s actions fall within the Rome Statute’s prohibition of attacks directed against civilians.

Additionally, the destruction of tipis, provisions, and captured horses mirrored acts prohibited by Article 8(2)(b)(xxv) of the Rome Statute. These objects were indispensable to the survival of the population. Custer’s strategy was not to neutralise armed resistance alone but to render Indigenous life impossible on its own terms.

The Defence by the Lakota, Cheyenne, and Arapaho

U.S. accounts long framed the overwhelming of Custer’s forces as a savage onslaught. In reality, it was the lawful defence of a people against an invading army. Leaders such as Crazy Horse, Sitting Bull, and Gall did not initiate aggression but responded to an attack on their homes. Under Article 51 of the United Nations Charter and principles of self-determination later recognised in international law, their resistance constitutes a legitimate defence against unlawful aggression.

Colonial Mythology and Historical Distortion

The mythology of “Custer’s Last Stand” obscured these realities, casting the officer as a martyr to Manifest Destiny rather than as a commander who violated fundamental principles of humanity. Heroism was constructed not through legality but through colonial ideology. Under contemporary scrutiny, however, Custer’s reputation collapses. His campaigns, far from noble, were consistent with conduct recognised today as war crimes and crimes against humanity.

Conclusion: A Reframed Legacy

If judged under the Geneva Conventions or the Rome Statute, Custer’s conduct at the Washita and the Little Bighorn would constitute serious breaches of international humanitarian law. He intentionally directed attacks at civilians, destroyed objects essential to survival, and advanced a policy of forced displacement against Indigenous nations.

The Battle of the Little Bighorn must therefore be understood not merely as a tactical miscalculation that led to a dramatic defeat, but as the culmination of criminal policies of conquest. Stripped of myth, Custer’s legacy is not that of a fallen hero but of a perpetrator of war crimes whose downfall came not through tragedy but through the lawful resistance of those he sought to destroy.

References

[1] Geneva Conventions, 1949; Additional Protocol I, 1977.

[2] Greene, J. (2004). Washita: The U.S. Army and the Southern Cheyennes, 1867-1869. University of Oklahoma Press.

[3] Fort Laramie Treaty, 1868 (U.S. Statutes at Large, Vol. 15, p. 635).

[4] Utley, R. (1988). Cavalier in Buckskin: George Armstrong Custer and the Western Military Frontier. University of Oklahoma Press.