"Other" War Crimes -- Execution of Escaped POWs

[David Thompson]

In March of 1944, a number of captured allied airmen held in the Stalag Luft III camp escaped. The film "The Great Escape" was based on the event. Between 25 Mar and 13 Apr 1944, the German authorities recaptured a number of these airmen and executed them.

After the war, British tribunals put several groups of German police officials on trial, held them responsible for the killings, and convicted them of war crimes. The most famous of these cases is called the Stalag Luft III trial, which is reported at:

http://www.ess.uwe.ac.uk/WCC/wielen1.htm

Given the numerous comments about the perceived unfairness of the war crimes trials at Nuernberg on various other threads, is there anyone who thinks it was unfair for the allies to try, convict and punish the perpetrators? Was the execution of these recaptured allied aviators by German authorities a legitimate war crime?

[Peter]

The execution of approximately 50 British & Commonwealth airmen for escaping by units of the Gestapo/SD and Polizei was an outright war crime, completely indefensible.

A number of other individual incidents of murdered airmen (escaped POW's) resulted in trials. I think that this is wrong whereas the shooting of a prisoner attempting to escape from a POW Camp and who ignored repeated instructions to stop is a totally different situation.

An even larger number of RAF and USAAF airmen were beaten to death or shot on parachuting from their shot down bombers over Germany. This is equally wrong but when carried out in the heat of the moment during the closing stages of an air raid by people who had just lost relatives and friends, perhaps its more understandable even if it is wrong.

The "Commando" order which resulted in the murders of British commandos in Norway in late 1942, I believe British & US commandos in Italy and at least 50 SAS men captured in France/Germany in Jun/Aug 1944 is an outright war crime and can not be defended in the light of the Skorzeny raid in the Ardennes in US uniforms.

Pete

[David Thompson]

Thanks, Iltis. As you might guess, I agree with you. I'm going to open up a separate thread on the lynchings of allied aviators. There's been a great deal of criticism of the war crimes trials on this forum, so I thought I'd try to separate out what people thought were legitimate war crimes charges from those claimed to be illegitimate and unfair.

[Scott Smith]

Executing captured commandos out of uniform is completely justified. You don't waltz into a foreign country with patriotic bullshit on your tongue and mayhem in your mind and expect that there not to be any consequences, even in wartime. When some German spies landed in the USA by U-Boat during the war they were executed, some only teenagers. It is a bit hypocritical to say that the same should not happen to Allied spies and saboteurs.

No, this is not a concentration camp, some German soldiers are executed by the Americans for wearing enemy uniforms and presumably engaging in spying and sabotage behind the lines. (Life magazine, June 11, 1945.)



As far as Allied aviators, they were engaging in a particularly brutal form of terror-warfare against the German people themselves. They are lucky that all officers were not simply shot or lynched upon capture or en masse with some kind of publicly-cathartic spectacle, or what I call an Orwellian "two-minutes of Hate."

The best response to terror-warfare is retaliation in full-measure, if not more.

But there are other considerations and limitations to this rather-Reaganesque or "Cowboy" tactic.

If Germany started doing this with Allied aviators then they might reciprocate with Luftwaffe aviators. One way around this problem would be to have a German court-of-inquiry try only bombardiers and pilots for war crimes and hold them responsible for "collateral damage." Their own governments maintained (falsely) that the German people themselves were not the targets, which were only military.

This might be problematical as well but as long as Luftwaffe aviators were not engaging in terror bombing a' la the RAF, it might have some deterrent effect, or effect upon morale, both German and enemy. Of course, this doesn't mean that the Allies might not have found some other way to retaliate such as shooting Wehrmacht and SS prisoners, as indeed happened often. So, in general, I don't think the effort would be worthwhile.

Hitler chose to retaliate with V-1 cruise-missiles and V-2 rockets, but he wasn't able to muster enough force to make the deterrent work. A single Allied bomber raid could drop more tonnage than the equivalent of the maximum V-2 production of 900 (actually 600) units per month. The V-1 came closer to success, however.

As far as the Great Escape, Hitler was absolute Head of State, the Leader of a sovereign nation, and if he chose to ignore the Geneva convention on this point and make an example of the escaping airmen, then that is his prerogative. The same with Göring, although he argued for moderation and only 50 were shot. International agreements are made and unmade by sovereign nations. Germany would probably lose more than it gained with ineffective retaliation, however, as can be seen on the Eastern Front, where the Russians did not sign the Geneva conventions and the Germans therefore felt unrequired to abide by them. It was therefore tough for the grunts of both sides.

If some Luftwaffe commandant had arbitrarily done so, however, without authority, then he could be charged with a war crime under existing international agreements, either by his own government (because he was breaking its own treaty laws) or by some competent jurisdiction. But it is doubtful that any courts martial held by victors and not neutrals would provide a fair trial in any case. This has to be taken into account with international trials and problems of jurisdiction in international agreements and why the USA rightly will not permit this sort of nonsense happening to its soldiers and citizens (unless they are accused former Nazis).

War Crimes are different from political crimes because they violate the existing laws of a sovereign nation, sometimes articulated in its agreements. Political crimes and ex post facto charges are nothing more than Victor-Propaganda. That is nine-tenths of what Nurmemberg was. Rudolf Hess, for example, was not sentenced to life-imprisonment for warcrimes but for having been Deputyführer of the Third Reich and not renouncing his beliefs after his defection in 1941 in a misguided attempt to end the war.

Below, Allied Tac-Air destroys a German train. They don't care if the train is carrying civilian passengers, soldiers, armaments, or even foreign workers or POWs. They don't even care if the train is full; the objective is to destroy German locomotive and rolling-stock in a sort of aerial-railroad "tonnage doctrine." The strategy was highly-successful and resulted, along with the systematic destruction of the petroleum infrastrcture, in the complete paralysis of German internal logistics by war's end.



Of course, if you were on one of those trains you might consider it a warcrime, especially if your side won.

[David Thompson]

Scott -- In regard to the the execution of commandos, I was thinking of a different situation from the one you raised. I posted a response on the "'Other' War Crimes -- Commando Order" thread.

I'm trying to keep the discussion of each of the "other" war crimes separate so I can figure out if the contributors:
(1) object to the concept of war crimes generally (as I think you do), or
(2) think some war crimes are legitimate offenses, while others aren't (which may be the majority response).

I'll get back to you on the Great Escape topic shortly.

I intend to take up the question of the "fairness of the proceedings" on a different thread, because the issues are more complicated. My approach will be:
(1) Is it a crime?
(2) What is the proof?
(3) Fairness issues

[David Thompson]

Scott -- On the subject of the execution of escaped and recaptured allied fliers:

(1) Do you think it was the prerogative of the allies, as sovereign nations, to punish the culprits?
(2) What do you think an appropriate allied response would have been?

[Roberto]

As far as the Great Escape, Hitler was absolute Head of State, the Leader of a sovereign nation, and if he chose to ignore the Geneva convention on this point and make an example of the escaping airmen, then that is his prerogative.

There we go again, an apologist of absolute state power trying to convince himself that international law is at the disposal of heads of state, a concept completely at odds with prevailing legal opinion.

You are free to believe what you like, of course, but in the absence of a legal opinion supporting such contentions, they sound rather desperate.

[...]The objection that the unlawful treatment of Red Army soldiers in German captivity was justified by Führerbefehl (and was therefore legal) is just as irrelevant. We can find the same line of argumentation in the defense pleas during the Einsatzgruppe trials, as well as in other cases where the killing of Soviet civilians and POWs on political, race, or religious grounds was justified by Führerbefehl as a law based on unwritten Nazi constitutional law. The fact that Führerbefehl was law is not debated, since Hitler had legislative power due to so-called revolutionary law, which had replaced the Reich constitution following the Nazi takeover, and which had been universally recognized in a fairly short time. Hitler’s will was law, or was at least to be carried out as if it were law. Even laws passed by constitutional bodies were seen as expressions of the Führer’s will.
However, Hitler’s legislative power had its limits (as all such power does) arising in particular (according to general legal opinion) from the fundamental principles of human behavior that have crystallized in all civilized nations on the basis of ethical agreement. This means that the Führerbefehl depriving Soviet POWs of law of war protection was illegal. Even if we did not share this opinion, Hitler’s will, which was legally valid, that Red Army soldiers in German captivity should be excluded from the law of war would be irrelevant, since the prevailing opinion is that international law has precedence over national law if the latter conflicts with the former. It hardly needs saying that this was indeed the case.[...]

[Scott Smith]

As far as the Great Escape, Hitler was absolute Head of State, the Leader of a sovereign nation, and if he chose to ignore the Geneva convention on this point and make an example of the escaping airmen, then that is his prerogative.

There we go again, an apologist of absolute state power trying to convince himself that international law is at the disposal of heads of state, a concept completely at odds with prevailing legal opinion.

You are free to believe what you like, of course, but in the absence of a legal opinion supporting such contentions, they sound rather desperate.

"Prevailing legal opinion" is irrelevant. International Law is simply Victor's Justice. The United States is a superpower and won't tolerate incursions by foreign courts. This is in fact the traditional foreign policy of the U.S., in spite of the prevailing notions of Internationalism and the crusading follies of Interventionism.

As the great diplomat and statesman, John Quincy Adams wrote in 1821 on America, "she goes not abroad, in search of monsters to destroy."

And now, friends and countrymen, if the wise and learned philosophers of the elder world, the first observers of nutation and aberration, the discoverers of maddening ether and invisible planets, the inventors of Congreve rockets and Shrapnel shells, should find their hearts disposed to enquire what has America done for the benefit of mankind?

Let our answer be this: America, with the same voice which spoke herself into existence as a nation, proclaimed to mankind the inextinguishable rights of human nature, and the only lawful foundations of government. America, in the assembly of nations, since her admission among them, has invariably, though often fruitlessly, held forth to them the hand of honest friendship, of equal freedom, of generous reciprocity.

She has uniformly spoken among them, though often to heedless and often to disdainful ears, the language of equal liberty, of equal justice, and of equal rights.

She has, in the lapse of nearly half a century, without a single exception, respected the independence of other nations while asserting and maintaining her own.

She has abstained from interference in the concerns of others, even when conflict has been for principles to which she clings, as to the last vital drop that visits the heart. She has seen that probably for centuries to come, all the contests of that Aceldama the European world, will be contests of inveterate power, and emerging right. Wherever the standard of freedom and Independence has been or shall be unfurled, there will her heart, her benedictions and her prayers be. But she goes not abroad, in search of monsters to destroy.

She is the well-wisher to the freedom and independence of all.

She is the champion and vindicator only of her own.

She will commend the general cause by the countenance of her voice, and the benignant sympathy of her example.

She well knows that by once enlisting under other banners than her own, were they even the banners of foreign independence, she would involve herself beyond the power of extrication, in all the wars of interest and intrigue, of individual avarice, envy, and ambition, which assume the colors and usurp the standard of freedom. The fundamental maxims of her policy would insensibly change from liberty to force....

She might become the dictatress of the world. She would be no longer the ruler of her own spirit....

[America's] glory is not dominion, but liberty. Her march is the march of the mind. She has a spear and a shield: but the motto upon her shield is, Freedom, Independence, Peace. This has been her Declaration: this has been, as far as her necessary intercourse with the rest of mankind would permit, her practice.

[Scott Smith]

Scott -- On the subject of the execution of escaped and recaptured allied fliers:

(1) Do you think it was the prerogative of the allies, as sovereign nations, to punish the culprits?

Well, they were the Victors so they could legally do whatever they wanted. But from the standpoint of judicial fairness, this would have to be done by neutrals and not the enemy. And the basis would be that the Germans in question were in violation of the supreme GERMAN laws of the land by violating their nation's treaty agreements. So each perpetrator would only need show a clear chain-of-command. As mentioned, if Hitler and Göring had the authority to make laws and treaties then they, as heads of a sovereign-State, could also break them at will. The President of the United Staters can break treaties, something not always desirable to advertise.

(2) What do you think an appropriate allied response would have been?

Well, the possiblility that the Allies might retaliate was in fact a deterrent to reprisals for the Allied terror campaign.

Let's say that the V-weapons program was successful and "payback" forced the Allies to stop their strategic-bombing attacks. The Allies would likely have simply escalated, and in fact came close to using poison gas on the V-weapons sites themselves.

If Allied aviators had been shot, the Allies could have similarly found ways to escalate. But in general, bloodying the enemy's nose is a good way of making him think twice. The trick is to be in a situation where you can inflict damage with impunity. That was the case at the end of the war with the Tieflieger strafing German soldier and refugees in retreat, or of Mussolini using mustard gas on Abyssinia, or Truman dropping atomic ordnance on Japan.

Largely it is a matter of Bluff and Call, a war-of-propaganda, a war-of-nerves.

[Roberto]

As far as the Great Escape, Hitler was absolute Head of State, the Leader of a sovereign nation, and if he chose to ignore the Geneva convention on this point and make an example of the escaping airmen, then that is his prerogative.

There we go again, an apologist of absolute state power trying to convince himself that international law is at the disposal of heads of state, a concept completely at odds with prevailing legal opinion.

You are free to believe what you like, of course, but in the absence of a legal opinion supporting such contentions, they sound rather desperate.

"Prevailing legal opinion" is irrelevant. International Law is simply Victor's Justice.

Ach so, prevailing legal opinion is irrelevant.

Sovereignty is not a figure of international law and thus subject to change as international law develops, no.

It grows on trees and overrules everything else.

And a single sovereign´s will prevails over that of a community of sovereigns, of course.

If prevailing legal opinion is irrelevant, then so are arguments, I suppose, and so is reason.

All that matters is what Smith would like to believe.

And Smith´s article of faith is:

International Law is simply Victor's Justice.

Never mind that victors don´t make International Law, but merely enforce it.

But then, enforcement or the physical possibility of enforcement and the existence and validity of law are one and the same thing for Smith.

And everyone is entitled to his or her opinion, however far-fetched and absurd it may be.

[David Thompson]

Scott -- Here's the problem I have with your "sovereign state" argument on international law. Law is basically of method of trying to solve certain types of recurrent human conflicts. It changes (for good or ill) with the times, like other human institutions. History presents examples of different stages of law (some inspiring, some horrifying). There was a time when a person had to individually redress wrongs done to him or his family, or his clan. Even now, there are still blood feuds or vendettas.

This sort of law (lex talionis -- the "law of the claw") changed when a lord asserted his authority over a region, and again when a king or other sovereign asserted his rule over a country. At that point, the right to punish was reserved to the lord or sovereign.

In modern times, nations have instituted international agreements to try and mitigate the worst aspects of human nature. These do not supercede the sovereign's authority in his own realm, but they do limit his rights in dealing with other sovereigns. An honorable sovereign may abrogate a treaty, but first he gives notice to the other parties to the compact. A perfidious sovereign simply acts, without regard to his agreements. When this happens, the other sovereigns have the right to punish the faithless one (and his agents) for the perfidy and for any harm which may result.

The position you express seems to fix national sovereignty as the last, and ultimate authority for all law. If this is the argument, it is as artificial to me as fixing the omega point of legal development at the stage of the blood feud, or the honor of the clan or lord. As a result, I'm having a hard time finding the argument persuasive.

[James]

From a purely legal point of view, is there a distinction under international law between, on the one hand, an escaping POW who wears civilian clothes in his travels from the camp to freedom and, on the other hand, a soldier or spy who, in Scott's words, wears civilian clothes as he "waltzes" into the land of his enemy "with mayhem" on his mind (e.g., spying, sabotage, assassination, etc.)? In both cases, we have an able-bodied combattant out of uniform in enemy territory, but there is a world of difference regarding how and why this happened.

It is hard for me to believe that they are treated the same under the law, but I am guessing. Can anyone tell me the answer?

[Scott Smith]

From a purely legal point of view, is there a distinction under international law between, on the one hand, an escaping POW who wears civilian clothes in his travels from the camp to freedom and, on the other hand, a soldier or spy who, in Scott's words, wears civilian clothes as he "waltzes" into the land of his enemy "with mayhem" on his mind (e.g., spying, sabotage, assassination, etc.)? In both cases, we have an able-bodied combattant out of uniform in enemy territory, but there is a world of difference regarding how and why this happened.

It is hard for me to believe that they are treated the same under the law, but I am guessing. Can anyone tell me the answer?

I believe in the U.S. Army Soldier's Manual the advice was that if behind enemy lines NEVER take off your uniform for civilian duds; it is your protection under the Geneva convention. This would apply to escaping POWs as well and they would have to wear their uniforms. Sometimes POWs are issued uniforms by their captors with some kind of distinctive markings, such as German POWs in the United States who were often simply issued American uniforms with PW stencilled on. They were not always under strict guard. Armed escapees, or even downed aviators, would be in big trouble if caught. By surrendering you are agreeing to lay down your arms, although you still have some duty to escape and resist indoctrination/collaboration. After Vietnam, the military changed its draconian policy demanding that POWs "resist" the enemy. The North Vietnamese, who had signed the Geneva convention, merely said it didn't apply to downed American aviators because they were "war-criminals."


Photo from Armed Forces Museum at Camp Shelby, MS.

[David Thompson]

James -- After reviewing the 1929 Geneva Convention articles, I don't believe there is a distinction. POWs get to keep their uniforms and are supposed to wear them, even when escaping. An escaped POW might put a civilian topcoat on over his uniform, or try to alter the appearance of his uniform, but if he gets rid of his uniform, he runs the risk of being taken for a spy.

[Scott Smith]

Scott -- Here's the problem I have with your "sovereign state" argument on international law. Law is basically of method of trying to solve certain types of recurrent human conflicts. It changes (for good or ill) with the times, like other human institutions. History presents examples of different stages of law (some inspiring, some horrifying). There was a time when a person had to individually redress wrongs done to him or his family, or his clan. Even now, there are still blood feuds or vendettas.

This sort of law (lex talionis -- the "law of the claw") changed when a lord asserted his authority over a region, and again when a king or other sovereign asserted his rule over a country. At that point, the right to punish was reserved to the lord or sovereign.

In modern times, nations have instituted international agreements to try and mitigate the worst aspects of human nature. These do not supercede the sovereign's authority in his own realm, but they do limit his rights in dealing with other sovereigns. An honorable sovereign may abrogate a treaty, but first he gives notice to the other parties to the compact. A perfidious sovereign simply acts, without regard to his agreements. When this happens, the other sovereigns have the right to punish the faithless one (and his agents) for the perfidy and for any harm which may result.

The position you express seems to fix national sovereignty as the last, and ultimate authority for all law. If this is the argument, it is as artificial to me as fixing the omega point of legal development at the stage of the blood feud, or the honor of the clan or lord. As a result, I'm having a hard time finding the argument persuasive.

I'm not saying there is anything wrong with international agreements. I am saying that, what we mystically call International Law is nothing more than agreements between sovereigns who come to the table as such, and sometimes with or without negotiating leverage. Anybody can break an agreement who is free to make one. If this incurs the wrath of the others, they are free to do so otherwise, treaty or not. Diplomacy is an art of deception and propaganda. Calling it "LAW," as would befit lawyers trained in juris blathersnatch, is somewhat misleading. All treaties are agreements based on mutual self-interest of some sort, hopefully a win/win proposition for a long time. The longer one keeps to agreements the more a trust-relationship can be forged and sovereigns may even be willing to make agreements that aren't entirely in their interest but worth more to maintain a long friendship and banking favors which can hopefully be called when subsequent issues are more important to them. But to say that breaking a treaty is against the "law" and that sovereigns are criminals because their victors say-so, is absurd.