Terrorist act by Poles in Berlin metro

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ToKu
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Re: Terrorist act by Poles in Berlin metro

#31

Post by ToKu » 12 Nov 2010, 13:33

So, the principle of reciprocity was not applicable to the law and customs of war in 1943 in Your opinion?

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LWD
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Re: Terrorist act by Poles in Berlin metro

#32

Post by LWD » 12 Nov 2010, 14:22

PFLB wrote:
This was the nerve center of the Nazi state, and means that it wasn't just a civillian target.
That is certainly a novel argument from a legal perspective. Either someone is a combatant and open to attack or they're not. There isn't and never has been a rule of international law that a civilian's proximity to a military objective can deprive them of their civilian status so as to expose them to attack, nor has there ever been a rule that the presence of combatants among the civilian population deprives it of its civilian character.
Hardly novel. There are legitimate targets other than combatants. Furthermore it is recognized that in attacking combatants and other legitimate targets some non combatants will likely be injured or killed. If the target was military and organizational then the act was legitimate.


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Re: Terrorist act by Poles in Berlin metro

#33

Post by SashaWa » 12 Nov 2010, 14:56

The conventions were signed between countries regarding their behaviour in conventional warfare, I would find it surprising if any country would express to write down behaviour of others towards if it would decide to exterminate whole nations in industralised effort like Germany tried. My understanding is that the character o Nazi Germany was thought to be exception and one that would not be repeated in relations between countries. In any case it is hard to see countries contemplating allowed actions in cases where Nazi actions are repeated-nobody would like to do that.
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Re: Terrorist act by Poles in Berlin metro

#34

Post by LWD » 12 Nov 2010, 18:07

SashaWa wrote:The conventions were signed between countries regarding their behaviour in conventional warfare, ...
Parts of the conventions do address irregular warfare, partizans, and such.

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Re: Terrorist act by Poles in Berlin metro

#35

Post by SashaWa » 12 Nov 2010, 19:24

LWD wrote:
SashaWa wrote:The conventions were signed between countries regarding their behaviour in conventional warfare, ...
Parts of the conventions do address irregular warfare, partizans, and such.
Do they adress resistance to industralised attempt of extermination of whole nation where victims are classified as subhuman?

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Re: Terrorist act by Poles in Berlin metro

#36

Post by LWD » 12 Nov 2010, 20:46

Actually they do. Take a look at:
http://avalon.law.yale.edu/20th_century/hague04.asp
in particular section III.
I don't see that they directly address activities of civilians in response to the failure of the occupational forces to live up to these conventions however.

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Re: Terrorist act by Poles in Berlin metro

#37

Post by JamesL » 12 Nov 2010, 21:18

I believe that the Berlin subway bombing was an illegal act.

Article 22. The right of belligerents to adopt means of injuring the enemy is not unlimited. - Laws and Customs of War on Land (Hague IV); October 18, 1907

Until a more complete code of the laws of war has been issued, the High Contracting Parties deem it expedient to declare that, in cases not included in the Regulations adopted by them, the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience. – Introduction, Laws and Customs of War on Land (Hague IV); October 18, 1907.


I see no evidence that the bombers were part of a legitimate military force. That said, they were probably subject to prosecution under local criminal homicide laws as well as war crime laws.

The bombers could have attacked the nearby headquarters of the Gestapo, the Luftwaffe, the Fuehrer bunker, the Chancellory, or other obvious military targets. They chose not to do so.

As an aside, I understand that the Berlin subway system operated until April 1945.

I have to conclude it was a terrorist act resulting in the murder of civilians.

(Please excuse my absence for a couple of days. I have to run over to AHEC at Carlisle Barracks.)

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Re: Terrorist act by Poles in Berlin metro

#38

Post by SashaWa » 12 Nov 2010, 21:56

The bombers could have attacked the nearby headquarters of the Gestapo, the Luftwaffe, the Fuehrer bunker, the Chancellory, or other obvious military targets. They chose not to do so.
According to memoirs of the member of the group the target of this action were members of SS.


Also:the laws you mentioned didn't consider an industralize effort to exterminate whole nations and possible resistance to it.

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Re: Terrorist act by Poles in Berlin metro

#39

Post by PFLB » 13 Nov 2010, 05:53

Hardly novel
As I said, there is no rule that a civilian who is in the vicinity of a combatant or some other military objective somehow vicariously becomes a combatant. They might be in danger of being killed in an attack directed against combatants, but they themselves do not become one. Only if a civilian actually participates in hostilities do they lose their immunity from attack, and then only for as long as they do so. Nor does the presence of combatants among the civilian population deprive it of its civilian character.
Furthermore it is recognized that in attacking combatants and other legitimate targets some non combatants will likely be injured or killed
So far, there has been no evidence given that this was an attack directed against lawful target, in which civilian casualties were merely an unfortunate incident. We have heard people yap about what locality of Berlin it was in but, quite frankly, to deduce that it was therefore directed only against SS officers performing military role and not against the numerous civilians (which category, by the way, is not exclusive of SS members) who would inevitably be killed is pure conjecture - weak conjecture at that. Just like Hamas or Islamic Jihad claiming that a bomb placed on a bus near an army base is only intended to blow up IDF soldiers.
he conventions were signed between countries regarding their behaviour in conventional warfare, I would find it surprising if any country would express to write down behaviour of others towards if it would decide to exterminate whole nations in industralised effort like Germany tried.
These countries had World War Two fresh in their minds and drafted the 1949 Geneva Conventions primarily to avert repetition of such a horrible conflict. But rather than inserting or otherwise recognising that the Conventions did not apply to conflict against states engaged 'extermination of whole nations in industrialised effort', they reaffirmed in the clearest possible terms that the Conventions applied in all circumstances.

When the issue was raised again in 1977, those same states and others restated their position in even clearer terms.All this is discussed in detail Sandoz et al's ICRC Commentary on the Additional Protocols, and quite frankly should not need to be rehearsed here. And those states have continued to state the same position in their military literature, e.g. paragraph 3.12 of the highly authoritative UK Joint Service Manual 2004.

If you are really so sure of your opinion, why don't you actually go and find some state practice or even authoritative commentary to support it?
So, the principle of reciprocity was not applicable to the law and customs of war in 1943 in Your opinion?
The element of reciprocity in the law of armed conflict is belligerent reprisals.

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Re: Terrorist act by Poles in Berlin metro

#40

Post by ljadw » 13 Nov 2010, 13:37

Notwithstanding cuntless experiences,I continue to be amazed by the pernicious effects of liberalism in education .
Of course,the attack of the Berlin subway was no war crime ,the Berlin subway,being used by military,was a legitimate military target .
Another point:it is a sacro-sanct principle of liberalism that one is innocent unless one is condemned by a tribunal;the authors of the attack on the subway were not condemned,thus thus,they are no war criminals .
More general:it is very foolish to state that one cannot,in wartime,kill,unintentionally oreven intentionally,enemy civilians,because the result would be that war would be impossible .
It is also a sound principle that the lives of enemy civilians have less value than the lives of your own soldiers .
And,finally,as in most wars,there was in WWII no difference between an enemy soldier and an enemy civilian .It was lawful to attack civilians who produced weapons,who were transporting weapons,who were producing food .The German civilians who were using the subway,belonged to these groups,and were thus legitimate targets .

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Re: Terrorist act by Poles in Berlin metro

#41

Post by ToKu » 13 Nov 2010, 14:36

@PFLB

And what with situation when one side posses no means and /or power to carry proper belligerent reprisals?

Adaptation of what seems to be Your point of view (i.e. laws of war are universal once signed, signatory is bind to them regardless of all other circumstances – at least that how I understand Your posts) would often lead to depravation of one most basic rights – right to self defence, which is unacceptable and surely is not the aim of laws and customs of war.

Therefore in my opinion in objectively extraordinary circumstances such as were observed in occupied Poland in 1943 (asymmetric warfare in which more powerful side is not complying with laws and customs of war, not by excess, but by general rule, and to the most serious effects), more fundamental meaning of principle of reciprocity must be taken under consideration. This general rule may be understood as: "no state observes rules which its enemy state do not comply with". This principle, as put above, is as much important for international law, as right of private property for civil law , or principle nullum crimen sine lege for penal law. Corner stones.

It is common sense that only those who themselves comply with the rules of international humanitarian law can expect the adversary to observe the dictates of humanity in armed conflict.

Citations are taken from “International humanitarian law after September 11: challenges and need to respond” by Dieter Fleck

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Re: Terrorist act by Poles in Berlin metro

#42

Post by Adam Carr » 14 Nov 2010, 06:06

ToKu makes a good point. The "laws of war" were written at a time when European states fought each other for rational ends and were usually willing to negotiate a reasonable outcome when victory had been achieved, as in (say) the Franco-Prussian war. The authors of these laws did not envisage a time when a major European state would launch a war of extermination (Vernichtungskrieg) against its neighbours. The Germans did not just defeat Poland, they occupied the entire country (apart from the bit they gave to Stalin), abolished its sovereignty, and set about exterminating its population, either directly (as with the Jews and also the Polish intellectual class), or indirectly (through deportation, starvation, disease and forced labour). If Hitler had won the war, the Polish nation (and many others) would not now exist. What then were the Poles to do? Accept their fate, since any possible form of armed resistance would be defined as "terrorism" and thus illegal? Or use whatever means they had to fight back?

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Re: Terrorist act by Poles in Berlin metro

#43

Post by PFLB » 14 Nov 2010, 07:15

This general rule may be understood as: "no state observes rules which its enemy state do not comply with". This principle, as put above, is as much important for international law, as right of private property for civil law , or principle nullum crimen sine lege for penal law
Unlike other areas of international law, the law of armed conflict has long been one not governed by the principle of reciprocity. The only aspect of reciprocity in this body of rules is the taking of belligerent reprisals, and there is no evidence that attack falls into such a category.
right to self defence, which is unacceptable and surely is not the aim of laws and customs of war.
Self-defence against aggression has nothing do with the law of armed conflict. Self-defence is part of the law 'jus ad bellum', which governs the use of armed force per se. The law of armed conflict only governs the manner in which armed force is used, and applies equally to all belligerents regardless of whether or not they are legally entitled to use armed force. Hence the statement in paragraph 3.12 of the UK Joint Service Manual 2004. See for example section 101 of Dieter Fleck's compendious Handbook of International Humanitarian Law (2008).

Hence why, at the Geneva Diplomatic Conference 1974 - 1977, Vietnam's proposal to impose different restrictions on nations defending against 'aggressors' was totally rejected. As I have said above, this is discussed in Sandoz et al's ICRC Commentary on the Additional Protocols.
ToKu makes a good point.
No Adam, I'm afraid ToKu does not make a good point. It may be the case that when European states drafted and otherwise applied the laws of war developed before World War Two, they did not foresee the situation that arose in that conflict.

But if ToKu's argument were correct, you would expect that those states would have explicitly stated that World War Two was a new situation and that rules and principles previously applied had to be altered, viz, that they were entitled to do things that were previously prohibited in order to beat the Nazis. They did not make any such claim. They repeatedly reaffirmed that the conflict was governed by the law already in force, and then after the war ended they reaffirmed in Common Article 1 of the 1949 Geneva Conventions that the law of armed conflict applies in all circumstances. And those states and others then reaffirmed that principle in the Preamble of Additional Protocol 1. Whether or not the situation arising in World War Two was unforeseen, the actual practice of the Allies shows that they did not see this situation as exempting them from their legal obligations.

So the fact of the matter is that ToKu's argument simply has no basis in the actual practice and legal views of states, which is the substance of customary international law. I have asked him for something - anything - to back up his argument and so far he has presented nothing. His views as to what was or wasn't foreseen before by states before World War Two mean absolutely nothing given that his reasoning is clearly contradicted by state practice and legal views during the conflict and since then.As I have said above, this issue is discussed in detail in Sandoz et al's ICRC Commentary on the Additional Protocols. It is such a basic principle of international humanitarian law that I am surprised to see it called into question - as I have said above, this discussion seems to consist largly of ToKu stating political opinion masquerading as legal principle.
Last edited by PFLB on 14 Nov 2010, 08:08, edited 3 times in total.

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Re: Terrorist act by Poles in Berlin metro

#44

Post by Sunbury » 14 Nov 2010, 07:45

I am puzzled why this minute focusing on a single event. The question PSFB hasn't answered is Nazi Germanys deliberate refutation of all Conventions when dealing with Poland. How does that affect adherence to Conventions? No yapping please, nor sneers. It is a very simple question.

SashaWa wrote
Do they adress resistance to industralised attempt of extermination of whole nation where victims are classified as subhuman?


That is the core question in looking at this example. Germany undertook a deliberate policy of genocide outside all Conventions. Then those Conventions cannot be reapplied to a solitary act by one side and not the other. PSFB has never mentioned anything about the Nazi's actions in Poland. That in itself is very strange.

I would agree those Poles involved in the attack should have been made to face a Court of Enquiry post war, but all they had to say was they were attempting to target military targets and they would walk free. It is a no brainer, 41 dead Germans against 6 million dead Poles

ljadw really really needs to do an edit of a post, there is one hell of a typo.
Who discovered we could get milk from a cow? and come to think of it what did they think they were doing at the time? Billy Connolly

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Re: Terrorist act by Poles in Berlin metro

#45

Post by PFLB » 14 Nov 2010, 07:58

Then those Conventions cannot be reapplied to a solitary act by one side and not the other.
As I said above, the law of armed conflict, unlike most other areas of international law, is not governed by the principle of reciprocity.

A convention, once adopted, must be adhered to regardless of whether another state party breaches that treaty or denies that it applies. In any case, the law of armed conflict does not consist only of treaties, but also customary law and general principles of law recognised by civilised nations.

The only respect in which reciprocity enters into the equation is belligerent reprisals. If someone would like to present evidence that this attack was a belligerent reprisal, they are welcome to do so.

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