Here is some information on different types of homicide:I hate to tell you this but MURDER IS MURDER. Why do I keep saying this? Maybe because it is.
Similar to civilian codes of law, various bodies of military law also have varying "degrees" of homicide. For example, the US military's Uniform Code of Military Justice (UCMJ) recognizes both murder and manslaughter in Articles 118 and 119, respectively.
Now I do want to point out that in 1944 that military law and the rules of war were not as developed as they are today (e.g. the creation of the 1949 Geneva Conventions and its three subsequent protocols in the subsequent decades, the creation of the UCMJ, etc.) Back in WWII, the military law code of the US and the Commonwealth countries (UK, Canada et. al.) were based on the common source - the ancient English "Articles of War" (http://en.wikipedia.org/wiki/Articles_of_War) though the US system did spin off in its own direction with the addition of the Leiber Code et. al.
Note that military law tends to differ significantly from civilian law in the respect that the former is more concerned about enforcing discipline and the latter more about protecting rights.
My point is that if you're going to make a blanket statement that in June 1944 Normandy a Canadian soldier killing a German soldier possibly attempting to surrender is clear cut murder, then you'd better read up on what Canadian military law existed at the time and what it said, if anything, about the treatment of prisoners and of course how it relates back to the 1899 conventions. I've searched on Google for material on Canadian military law during WWII, but other than a very long PDF scanned 1939 manual on a very slow server, haven't found much info.
Back in WWI, Canadian troops occasionally shot surrendering Germans. In fact, the Canadian War Museum historian Tim Cook even wrote a monograph about it called The Politics of Surrender - see http://web.viu.ca/davies/H355H.Cda.WWI/ ... s.2006.htm - which touches on how, as I mentioned before, surrendering is an inherently dangerous act and can in combat be met with mercy or a bayonet thrust.
It's clear that in the beginning of WWII, the Canadian forces had not fully thought out rights and responsibilities with regards to the taking of prisoners or of being taken prisoner, but that by the summer of 1944 - as a result of the HJ murder spree - these rights and responsibilities began to be clarified. Here's a quote from Jonathan Vance's book Objects of Concern: Canadian Prisoners of War Through the Twentieth Century, p.102:
So here we have the Commander of the First Canadian Army specifically ordering that no retaliation should be taken....“…The hazards inherent in that first stage of captivity eventually forced the Canadian Army to pay particular attention to preparing soldiers for the possibility of capture. Presumably Chief of the General Staff Harry Crerar’s mention in 1940 of a Canadian soldier’s rights and obligations in war included his right to be taken alive as a POW, and his obligation to take prisoners if they presented themselves. Nevertheless, a take-no-prisoners policy was talked of in the Canadian Army in 1940. In May, when Canadian troops were anticipating going into action in France, 1st Division General Officer Commanding (GOC) General A.G.L. McNaughton said that ‘you must be absolutely ruthless…tell the men we are not particularly interested in prisoners. (17) Whether anyone mentioned the obverse of this, that the Germans might be just as uninterested in prisoners, is not recorded.
In 1944, these considerations suddenly became imperative. Whether or not an unofficial take-no-prisoners policy existed in the Canadian Army is a matter of some debate, but there can be no doubt that it was the practice of certain German units in Normandy. (18) On the morning of 7 June 1944, [brief synopsis of 12th SS incidents]…When these murders came to light in July, the government was forced to address the dangers surrounding the moment of capture. CMHQ had to take swift action to make soldiers aware of the new hazards facing them if captured, although Crerar, now GOC of the 1st Canadian Army, was more concerned that atrocity stories might drive Canadian soldiers to reprisals. In fact, the text of a message to the troops provoked some debate. Crerar wanted to say that the prisoners [killed by the 12th SS] had been ‘murdered under circumstances of great brutality’ to convince soldiers of the type of enemy they faced, but the government wanted the phrase omitted to avoid alarming relatives. In the end, Crerar compromised and said only that there must be no retaliation but that anger should be converted into a ‘steel-hard determination; to defeat the enemy. (20) The impact of this incident on the training of soldiers for captivity is difficult to access. One soldier, however, recalled that before going to action in northwest Europe, his unit was briefed on the different German troops they might face and the attitudes such troops could be expected to have. (21)"
My point in citing Pindar ("Dulce bellum inexpertis") is to illustrate how taking or shooting soldiers attempting to surrender in combat occurs in a situation chaotic, carnal and callous, and we need to recognize that. For example, historian Alexander McKee on p. in his book Caen: Anvil of Victory mentions this in his description of combat at Bretteville l'Orgueilleuse, including a commentary by Leo Gariepy of the 6th Canadian Armored Regiment:
"'…We were amazed at the facility with which we were taking them. Their casualties were high, ours were negligible, few prisoners were taken. It is a problem for such groups to give up. First, they have to brave their own troops, then to face the opposing force, not always clear on their intentions. They came forward aligned down the muzzles of enemy guns, and a single shot fired by one man can cause thousands of others to follow suit. This was not yet 'savagery' or 'revenge', it was SNAFU or 'organized confusion'." Nevertheless, men going forward to surrender were shot down, and this could easily be, and most probably was, misinterpreted as deliberate ruthlessness on the part of the Canadians."
Since (and probably as a result of) WWII, modern armies have developed and adopted a whole set of rules of engagement and rules of the use of force in order to better train soldier on the appropriate use of force and mitigate the chance of illegal killings. However, both in the perhaps uncodified practices of 1944 and the ROE cards of today, a soldier always has the inherent right to defend himself against dangerous personal attack.Now, I cannot recall posters saying that context in a combat scenario is irrelevant. It is very important and I agree with you there. Rules avoiding needless killing are also very important and I hope you agree with me also.
I just got the book!
I haven't done a deep dive yet but I agree with you that the lack of footnotes or other citations is poor form. Give me a couple of days reading it and I'll post some observations.