Charlemagne soldiers executed at Bad Reichenhall

[LWD]

Shouldn't there be some formal process that determines the transition of status however? Not to mention the conviction and sentensing? In this case there seems to have been neither.

[PFLB]

International humanitarian law governs the way that military forces wage war. It generally has to be amenable to battlefield conditions, and for that reason it often eschews requirements for formalities. What sort of formalities do you have in mind?

[LWD]

In this case claiming battlefield conditions hardly constitutes a reasonable defence. If an individual has the status of a POW and you want to change that status some sort of preceding should be required. In the case above for instance you would have to determine that they really were French and had not renounced thier citizenship. Furthermore they should be allowed to argue for the fact that as Vichy Nazi Germany was not a "foe of France". A raft of other questions could be pertinant although some may have been answered it would seem that something other than an informal "off with their heads" is required.

[Hecht]

Panzermahnn,

IMO this guy doesn't look "Caucasian", he looks like Pakistani or Hindù a lot to my eyes: notice the difference between the skin colour of the soldiers on his sides.
Also his hairs looks a bit "strange".

[David Thompson]

Let's get back on the war crimes aspect of this thread, please.

[PFLB]

'In this case claiming battlefield conditions hardly constitutes a reasonable defence.'

It's not a defence, it's the absence of a rule which you claim exists. Don't confuse the issue. You are arguing that international humanitarian law contained some requirement for a 'formal process'. I am telling you that not only is there no such requirement, but that it would be contrary to the way that international humanitarian law ordinarily functions. If you believe that such a requirement existed, please point to a treaty provision or state practice and opinio juris sive necessitatus to prove it.

[LWD]

If you can arbitrarily say that a POW is no longer a POW especially on an individual level then the POW status becomes meaningless. The fact that POW status includes certain protections implies that one can't just arbitrarily remove such status.

[PFLB]

It is not arbitrary. As I have said above, it is same criterion which is applied regarding the point at which POW status commences and when it ends consequent to an escape - is the POW physically in the custody of the state. In fact, your argument - for POW status to end upon some indeterminate 'formal process' - is arbitrary, unless you can specify what that process is and when it occurs, and also what its basis in international humanitarian law is. People need to remember that at this stage international humanitarian law was basically about protecting people from other states, not from their own state. That is, after all, why the concept of crimes against humanity was developed.

[LWD]

I believe it specificallly states that an escaped POW retains his status until and unless he reaches friendly lines. The other standard way of "loosing" POW status is repatriation.

[PFLB]

That is because it doesn't even conceive of the possibility that a combatant who falls into the custody of the state of which they are a national will have POW status. Once they are in that state's custody they are subject to its jurisdiction just every other national. If that isn't the case, when exactly does their state regain ordinary personal jurisdiction over them, according to you, bearing in mind that they can hardly 'escape' or be 'repatriated' to that state if they are already in its custody?

[LWD]

But of course they can. Some sort of proceeding that determines that they are indeed nationals would seem to be required however. There is a legitimate quesiton of whether such troops intially captured by troops of their own nation would even be considered POWs but that is another matter. If one can simply state "that POW is actually from our country and thus a traiter execute hime" then the status of POW is meaningless.

[PFLB]

Why is it useless? As I said, the purpose of POW rules is to protect the nationals of other states. In fact, the matter was deliberately omitted from the Second Additional Protocol for precisely that reason, in favour of more skeleton regulations on 'detainees' and 'internees'.

[LWD]

Why is it useless? As I said, the purpose of POW rules is to protect the nationals of other states. ....

Because if the decision can arbitrarily be made to reclassify them as traitors and excute them it doesn't protect them.

[PFLB]

There are alot of things which if done arbitrarily will deprive people of protection under international humanitarian law. The deterrent against arbitrary behaviour is that if a decision is made and it's wrong, it will be a breach of international law and potentially also a war crime. This is true here - had they been German soldiers and yet treated as if they were French there would be no doubt that the execution was unlawful and criminal.

[LWD]

There are alot of things which if done arbitrarily will deprive people of protection under international humanitarian law. The deterrent against arbitrary behaviour is that if a decision is made and it's wrong, it will be a breach of international law and potentially also a war crime. This is true here - had they been German soldiers and yet treated as if they were French there would be no doubt that the execution was unlawful and criminal.

As is there is little doubt that the execution was unlawful and criminal. There is the question of whether or not this was a violation of the conventions. My position is that if it is not then the conventions don't really protect POW's at all. The conventions don't prevent the trial and punishment of POWs they simply require due process and that does not seem to have occured here.