Charlemagne soldiers executed at Bad Reichenhall

[Panzermahn]

That appears to be the crux of the issue. The French SS were serving in the armed forces of an enemy of France. Ergo = traitors, subject to the French Penal Code.

So was the members of the Free French Forces, serving in the armed forces of an enemy of France (Vichy)

DeGaulle was a cabinet minister of the Reynaud government of the Third Republic and thus considered himself as legitimate continuation of the pre-war French government.

This is incorrect. De Gaulle was appointed by Reynaud as the Undersecretary of State of National Defence and War, nowhere near being a full minister. The position of an Undersecretary of State is not a full-fledged ministerial position since de Gaulle was a junior member of the French cabinet and his appointed was dated on only June 6, 1940.

De Gaulle's own personal views as the legitimate continuation of the pre-war French government has no legal standing based on the pre-war French constitution and laws as the head of state of France, President Albert Lebrun, using his legal presidential powers in inviting Marshal Petain to form the government AFTER Reynaud has resigned (thus de Gaulle's position as the undersecretary of State of National Defence and War are considered null and void since France's Third Republic cabinet was dissolved by Reynaud's resignation).

He viewed Petain as seizing power in a coup

Again, de Gaulle's personal view has no legal standing since it was President Lebrun who invited Petain to formed the government AFTER Reynaud has resigned. Nowhere did Petain ordered French soldiers to seized power in the French National Assembly

Unless you want to argue that the Vichy collaborators holed up at Sigmaringen represented the legitimate French government

My contention is that after Reynaud has resigned in 1940, Vichy France under Marshal Petain (invited by President Lebrun to form the government) was the sole legitimate government of France. At least until 1942 where United States still recognised Vichy France by having her ambassador stationed in France. United States would not have an ambassador to Vichy France IF United States DOES NOT DE JURE recognised Vichy France as the legitimate government of France after the resignation of Reynaud and the dissolvement of his cabinet.

It is certainly arguable that when Vichy France's cabinet retreated to Sigmaringen in 1944, and when the Free French Forces retained the "possession" of France (as well as its National Assembly), it could be said that the Free French Forces could be then the legitimate government succeeding Vichy France. However, based on pre-war French Constitution, in order for a legitimate government to succeed a preceeding government, the previous cabinet had to be dissolved and one could say that Vichy France cabinet was never dissolved officially in the National Assembly.

Again, my contention that during the period from 1940 to 1942/43 or perhaps until 1944 before the retreat to Sigmaringen, Vichy France was the sole legitimate government of France, de Gaulle and his clique are traitors to France by rebelling against the legitimate government of France (Vichy) and by in cohorts with Allied forces, which were enemies of France during that period

Vichy France lost support of the people of France

That's your personal opinion

And these "12 brave French SS soldiers" served in the armed forces of an enemy of France, one which conducted a bestial occupation resulting in the deaths of hundreds of thousands of Frenchmen.

And compare it with the following "epuration savage" when France was "liberated" by the Free French Forces, which directly killed more French people that the German military occupation where German soldiers who raped Frenchwomen were executed by German military court-martials?

[David Thompson]

Let's stay on the topic, which has nothing to do with a comparison of the German occupation and the post-liberation period.

[D.Laurent]

French ss mostly joined after the liberation of france and the proclamation of the french republic.
The 2nd DB represented the french army.
Rather to disband the french waffen ss units after the liberation of france/ proclamation, the recruitment continued and people has joined it (most of them had fled from France).

French ss has nothing to do with Vichy ( since vichy kept its neutrality and never declared war to the allies) and fought against the ennemy of france.
So from a french perspective they are unlawfull combattant / mercenaries fight for an ennemy power.

It was still war at the time so the french military judgement (Leclerc and his headquarters) was legal.
The protection of foreign forces fighting against their own country was added to the geneva convention only in 1949(to protect fff for example).

In this case, national law is superior to internationnal law. There is no exception from nazi germany to usa nowdays.

[PFLB]

'then the conventions don't really protect POW's at all.'

How so? If the victims weren't POW's under international law then their treatment doesn't really illustrate anything. As I said above, the purpose of laws protecting POW's is to prevent mistreatment by other states, not a person's own state. Always has been, and still is.

'In this case, national law is superior to internationnal law'

International law is always superior to national law. It is simply a question of what international law required in this case. Assuming that the men weren't POW's at the time, then there was no rule of international law to prevent the operation of French penal law, or whatever penal law de Gaulle's regime applied. Panzermahn seems to believe that that law could not be applied, because of his opinions about the 'legitimate government' of France - as has been pointed, his opinions are irrelevant.

[Panzermahn]

French ss mostly joined after the liberation of france and the proclamation of the french republic

This is inaccurate. The majority of the members of French SS came from the LVF (French Legion Against Bolshevism) as well as the lesser known French SS Assault Brigade which the former was formed in 1941 shortly after Barbarossa and the latter in 1943. The remaining ones were refugee-volunteers or former French members of the SIPO-SD when the Vichy France government moved to Sigmaringen in 1944

LVF was formed in 1941 and its existence were sanctioned by the legitimate government of France at that time which were the Vichy France. Therefore the French Waffen SS descended from a legitimate armed forces of Vichy France. Besides, the French Waffen SS units has NEVER been used against the self-proclaimed Free French Forces (unless you wanted to count the Charlemagne Flak Battalion which were stationed at Bavaria in 1945, shooting a couple of 88mm shells against the Anglo-American air forces)

Again, my contention is that from 1940 to 1942, (perhaps until 1944), the Free French Forces were illegal combatants (it was Germany who allowed them the status of combatants as well as to protect German POWs captured by Free French) since their only claim of France's only legitimate armed forces mainly rests on de Gaulle's personal delusions of grandeur and self-aggrandizement (Je suis France!) second only to Napoleon

since vichy kept its neutrality and never declared war to the allies

Yes, Vichy has kept its neutrality and never declared war against the Allies but Great Britain attacked the Vichy French Navy forces at Mers-el-Kebir in 1942 despite Petain's guarantee that it would never be used against the Allies. And another fact that Great Britain send an ultimatum by official channel against Vichy France regarding her navy in Mers-El-Kebir, meaning that Great Britain herself recognised that Vichy France was the legitimate government of France in 1942.

If Vichy France was NOT the legitimate government of France in 1942 and ASSUMING that de Gaulle's personal claim that he is the legitimate continuation of the government France after 1940, why should Britain waste time to send official ultimatum to Vichy France? Why not attacked Vichy France without any ultimatum since it could be claimed that if Vichy France is NOT the legitimate government of France so any official declaration of attack has no legal standing in international law since Vichy France was not the legal entity of France.

Panzermahn seems to believe that that law could not be applied, because of his opinions about the 'legitimate government' of France - as has been pointed, his opinions are irrelevant.

My contention is that since the 12 French SS soldiers were seen as traitors to Lecleqrc and his gang as the Free French Forces were considered as the legitimate government of France AFTER the liberation of France in 1944. If that is based on the viewpoint of who is the legitimate government of France, then de Gaulle and his Free French Forces are certainly traitors to France from 1940 until 1942 since they were French and were fighting against the legitimate government of France at that time (Vichy France)

You can have both governments proclaiming to be the legitimate government of a single country and yet declaring each other's actions unconstitutional. Probably the only thing to break the impasse (I am not too sure though) is how other sovereign nations recognised which government's declaration.

For example, Vichy France was the legal government of France from 1940 to at least 1942

- Head of state of France, President Lebrun invited Petain to form the government AFTER Reynaud resigned and the Third Republic's Cabinet were dissolved
- United States recognised Vichy France at least until 1942 by having her ambassador . Great Britain is the same (by sending an ultimatum to Vichy France)
- Germany recognized Vichy France (by signing the Armistice with France rather than fully ocuppying France unlike Poland)
- Italy also signs the Armistice with Vichy France


And look at de Gaulle proclaimation at BBC after his retreat to London and considers himself the continuation of the legitimate government of Third Republic (which begs the question how could a government cabinet existed when the Head of the Government - Reynaud - has already resigns)

Questions must be asked:

- which sovereign nation recognised de Gaulle's so-called Third-Republic-Continuation-Cabinet-based-on-London government from 1940 to 1942?
- which sovereign nation signed any treaties with de Gaulle from 1940 to 1942?
- de Gaulle is only a junior member of the French Third republic Cabinet, does not even have the powers of a full-fledge minister, how could a junior member (undersecretary, who assist a minister) who is not even a minister or even a full diplomat could declared that a continuation of a government-in-exile?

When the Baltic Countries (Estonia, Latvia and Lithuania) were occupied by Soviet Union before the war, it was members of the cabinet who were full minister as well as diplomats who declared that the Estonian, Latvian and Lithuanian government were in continuation as government-in-exile and most important thing was the recognition given to it by sovereign nations such as United States and United Kingdom

[PFLB]

The only relevant question is whether the victims of execution were POW's. It is now apparent that your only interest in this discussion is to try and use it to make the contention that de Gaulle was a traitor, denigrate the Free French and make the utterly ridiculous contention that they were francs-tireurs (I note that you fail to admit any evidence whatsoever of state practice regarding the treatment of Free French forces or any other equivalent forces which might support your contention) - something we could probably all have guessed from the outset. As far as these facts go, the only point of interest regarding the status of de Gaulle's government is whether it was a state at the time of the executions, which it clearly was.

[Hecht]

The only relevant question is whether the victims of execution were POW's. It is now apparent that your only interest in this discussion is to try and use it to make the contention that de Gaulle was a traitor, denigrate the Free French and make the utterly ridiculous contention that they were francs-tireurs (I note that you fail to admit any evidence whatsoever of state practice regarding the treatment of Free French forces or any other equivalent forces which might support your contention) - something we could probably all have guessed from the outset. As far as these facts go, the only point of interest regarding the status of de Gaulle's government is whether it was a state at the time of the executions, which it clearly was.

Why the personal statements of "people like you" are always tolerated on this forum it sure a mistery to me: forum rules clearly stated that personal remarks are not allowed here, and, frankly, I don't come here just to read this, I have my own mind and idea, so, please stick to the rules and keep your opinions for you (let the readers make their own idea on what's\what's not "utterly ridiculous" and which "opinions are irrelevant").
We don't need teachers here and you have been not asked to be the Judge of this case.

So, let's back to the subject: if they were not POWs so what were they?
Traitors? Traitors of what? There were two legitimate French Governament, or, at least Vichy "Nation" was legitimate for its own citizens.
AWOLs? AWOLs from which army?
I mean, to deal about Treason I would like to have more details about 12's ID documents, nationality, citizenship, past in the French Army.
I'm quite sure none of you here would be able to prove that all the 12 were actually even French citizens\nationals, since some of the soldiers executed names are unknown.

Were they just Civilians? In this case, if they were, I think Conventions were to be applied to the Civilians also.

Beside that, I would like to know if a National Law could be applied outside the border of that very same Nation, I mean as far as I remember Occupiers must stick to the Laws of the occupied nation anyway, the 12 were executed in Germany, an Occupied Country, and not in France: so, despite the fact that the 12 were French (I would also like to research a bit better about the guy with Russian descent, since, if he was a pure Russian or a Russian Volksdeutschen, I would like to understand which was his actual nationality at the time of the execution: the same about the guy which looks a lot like a Hindù\Pakistani), I'm not sure that the English Army could have executed any English civilian found in Europe in 1945 just because considered a traitor, without a fair trial. But I can be wrong.

I think that with no realiable source about the actual nationality of ALL the 12, the discussion about treason is simply unacceptable.
French names are not enough to consider them French Citizens, and anyway we have 8 unknown persons amongst that group.

[PFLB]

I make no apologies - I am responding to posts which are audaciously polemic. He himself says:

'Again, my contention is that from 1940 to 1942, (perhaps until 1944), the Free French Forces were illegal combatants'

Mr Panzermahn consistently steers the discussion back to his pet issue of the legitimacy of de Gaulle's government in 1940-1942, without actually offering any explanation for how it is relevant to the execution of several Waffen-SS soldiers in 1944. As I have said over and over, if he accepts that the execution was carried out by a state in 1944 then his claims about the Vichy regime in 1940-1942 have no bearing on the issue - he is only interested in making a point about the 'legitimacy' of the Vichy regime. We are, in fact, discussing the execution of 12 people at Bad Reichenall, are we not - rather than trying General de Gaulle for treason?

' I think Conventions were to be applied to the Civilians also.'

As I've said, international humanitarian law prior to 1949 existed for the protection of individuals from other states, not their own. The concept of crimes against humanity was developed for precisely that reason. If they were French civilians, then it may have been a crime against humanity, but not a war crime. Hence, for example, in The Hadamar Trial, the American prosecutors limited charges to the killing of 476 Russian and Polish labourers, whereas they had originally planned to indict all those involved with the killing of ~10,000 Germans under the T4 program. The reason for this is that the jurisdiction of American military commissions was limited to violations of 'the laws and customs of war'. Those involved in the killing of Germans were later tried by the US Military Tribunals and German courts under Control Council Law 10, which conferred jurisdiction over crimes agaisnt humanity.

'I'm quite sure none of you here would be able to prove that all the 12 were actually even French citizens\nationals, since some of the soldiers executed names are unknown.'

Well then, from a legal perspective that settles the issue. In a hypothetical trial, the onus would not be on the defence to prove that the victims were French, but on the prosecution to prove that the victims weren't French. Reasonable doubt over their nationality would result in acquittal. In any case, however, names are unnecessary if nationality can otherwise be proven. As I pointed out above, there have been many war crimes prosecutions in which it was unnecessary to prove the identity of the victim, so long as their nationality was otherwise proven. And it goes both ways.

'Beside that, I would like to know if a National Law could be applied outside the border of that very same Nation'

States have numerous heads of jurisdiction on which to rely. One is territorial. Another is universal (e.g. all states can prosecute any war criminal). And another is personal, i.e. states have jurisdiction over everything that their nationals do. Hence, if the victims were French nationals the fact that they were tried and executed in Germany could make no difference. By the same token, military forces deployed overseas are still bound by their own domestic law. It must necessarily be so, otherwise there would be no basis on which states could control the conduct of their nationals overseas and international humanitarian law (and many other parts of public international law) would more or less fall apart.

[Hecht]

Please, as already stated several times, we are not here to respond to "audaciusly polemic posts" in an audacious polemic way: this is none of your business, stick to the rules, you are allowed to reply, but I, and many others, are not interested into your point of view, we are interested in facts.

Then, you say

As I've said, international humanitarian law prior to 1949 existed for the protection of individuals from other states, not their own. The concept of crimes against humanity was developed for precisely that reason. If they were French civilians, then it may have been a crime against humanity, but not a war crime."

Fine, so we can then say that Le Clerc was a "Criminal against Humanity"?
Would this work fine to you?
Crimes against humanity are not less deplorable than War-Crimes, I'm pretty sure most of the readers would try to justify in part a War-Crime, since War is a Chaos and it's not always easy to deal with it, but very, very few would justify a Crime against Humanity.

Well then, from a legal perspective that settles the issue. In a hypothetical trial, the onus would not be on the defence to prove that the victims were French, but on the prosecution to prove that the victims weren't French. Reasonable doubt over their nationality would result in acquittal.

Nice trick, the problem is actually former, it's not the nationality of the executed, but that there is not evidence that they were shot after investigation\trial, so they could not know who they were and if they were really traitors, since they were executed without trial, so, executed without even knowing who these people were, not only if they were actually traitors, but not even which nationality belonged to: so, when asked
"Why did you shoot them?"
"Because they were Traitors!"
"Oh really?, how you know that?"
"Because they were French!"
"Would you please produce evidence they were French? You don't even know theirs names...".

The simple fact that no evidence would be actually have the chance to be produced, since we know there was no investigation and no trial before execution, I think would be enough to codemn anybody, don't you agree?
The crime was not that they executed 12 persons, but that they did not really knew who were those they shot and the reason why.

States have numerous heads of jurisdiction on which to rely. One is territorial. Another is universal (e.g. all states can prosecute any war criminal).

War Criminal? They "were not POWs", they "were civilians", weren't they?

And another is personal, i.e. states have jurisdiction over everything that their nationals do. Hence, if the victims were French nationals the fact that they were tried and executed in Germany could make no difference. By the same token, military forces deployed overseas are still bound by their own domestic law. It must necessarily be so, otherwise there would be no basis on which states could control the conduct of their nationals overseas and international humanitarian law would more or less fall apart.

Then Germans were actually allowed to execute for whatever reason they considered personal any Reich's Citizen\German National in any place of the earth, is this right?

[PFLB]

'are not interested into your point of view, we are interested in facts.'

That's interesting. I was telling Panzermahn the same thing. Well, whatever.

'so we can then say that Le Clerc was a "Criminal against Humanity"?'

As has been discussed above, when it occurs in the context of a widespread or systematicic attack on the population. David also argues that a crime occurring outside that context can constitute a crime against humanity if it also constitutes a persecution on racial, politicial, ethnic or religious grounds - due to the apparent bifurcation in the IMT Charter and Control Council Law 10. I disagree, since the consistent trend in jurisprudence has been to regard the requirement for an attack on the population as generally applicable, whereas persecution has been treated as a distinct offence which occurs within that context.

'Nice trick'

It's not a trick. I'm just applying the standard of proof - let's keep separate issues separate shall we? It can't be a war crime if the victims were not protected by international humanitarian law against the actions of the French state, e.g. if they were French civilians. The onus would be on the prosecution to prove that they were protected by international humanitarian law. The fact that the executioners did not bother to ascertain the nationality of the victims in a judicial process (which isn't necessary under international law anyway) would not affect this - it would only deprive them of the chance to provide evidence that the victims were not protected by international humanitarian law.

'The crime was not that they executed 12 persons, but that they did not really knew who were those they shot and the reason why.'

The war crime is either unlawful killing or denial of a fair trial. There is no war crime of simply acting recklessly.

'War Criminal? They "were not POWs", they "were civilians", weren't they?'

I don't know exactly what your point is. I was simply giving an example of universal jurisdiction. It is really by the by - the point is that the French state had jurisdiction over French nationals everywhere, under its personal jurisdiction.

'is this right?'

If we are talking about this from a criminal law perspective, then yes, if it didn't constitute a crime against humanity. This is still the case from a criminal law perspective, subject to some additional restrictions such as those in the Genocide Convention, Common Article 3, Additional Protocol 2 and perhaps the law with respect to terrorism. There are restrictions of a non-criminal nature in international human rights law, and at the time there would also have been limitations under minority rights law.

[Hecht]

As has been discussed above, when it occurs in the context of a widespread or systematicic attack on the population. David also argues that a crime occurring outside that context can constitute a crime against humanity if it also constitutes a persecution on racial, politicial, ethnic or religious grounds - due to the apparent bifurcation in the IMT Charter and Control Council Law 10. I disagree, since the consistent trend in jurisprudence has been to regard the requirement for an attack on the population as generally applicable, whereas persecution has been treated as a distinct offence which occurs within that context.

Then, may I ask, how do you consider this crime?
It's not a War-crime, not a crime against umanity, then?
How would you classify a deliberate killing of 12 "civilians" for suspect Treason without trial by an High General in uniform the day atfer the truce was signed?

It's not a trick. I'm just applying the standard of proof - let's keep separate issues separate shall we? It can't be a war crime if the victims were not protected by international humanitarian law against the actions of the French state, e.g. if they were French civilians. The onus would be on the prosecution to prove that they were protected by international humanitarian law. The fact that the executioners did not bother to ascertain the nationality of the victims in a judicial process (which isn't necessary under international law anyway) would not affect this - it would only deprive them of the chance to provide evidence that the victims were not protected by international humanitarian law.

There's something that doesn't work correctly here.
So, if is not necessary to ascertain nationality of the victim, how can can be someone executed for being a Traitor?
Traitor of what?
I mean, is there any national\international law allowing anybody, Civilians or Military, to execute people without any trial?
Is this kind of events sanctioned by any specific regulation?

The war crime is either unlawful killing or denial of a fair trial. There is no war crime of simply acting recklessly.

So, what for example, one of the guys was not a French National?
What if Le Clerc ordered to kill f.i. a Pakistani National, or a Russian National after the truce and still wearing his uniform?
How should we deal in this case?
I remember you that 8 persons exectued on 12 are unknown, so, I think is pretty a force to execute them for being traitors of the French nations, don't you agree?

[PFLB]

'Then, may I ask, how do you consider this crime?'

I didn't say it definitely isn't a crime. As was discussed above, there were widespread summary executions throughout France at this time. This may well constitute a widespread and systematic attack on the population, in which case these executions could constitute crimes against humanity, if they were such as to form part of that attack. David knows more about this than I do.

'So, if is not necessary to ascertain nationality of the victim, how can can be someone executed for being a Traitor?'

If there is no law saying it can't be done, then it's lawful.

As I said above, there is no international law of treason, no set of rules that sets out how a trial for treason specifically is to be conducted (although as to rules governing trials of nationals in general, see the Unverisal Declaration on Human rights, International Covenant on Civil and Political Rights and Additional Protocol 2). States can and do try people for treason, and execute them. If they do so without bothering to ascertain their nationality, then they risk breaching various parts of international law - international human rights law, international humanitarian law, and the law on treatment of foreign nationals.

'I mean, is there any national\international law allowing anybody, Civilians or Military, to execute people without any trial?'

Before the Universal Declaration of Human Rights there was no generally applicable law on how a state was to apply penal law to its own nationals, and since then the UDHR the rule is that people are entitled to a fair trial. In other words, the world went from having a legal vacuum to having a positive requirement for a fair trial.

Crimes against humanity constitute an indirect limitation, but that law applies to individuals and not states. Also, it is limited by the restrictions I referred to above. For example, in The Justice Case the US Military Tribunal at Nuremberg accepted that merely trying people for treason in an arbitrary or unfair manner was not a crime against humanity, if it did not also constitute participation in a 'persecution' on various grounds. On the other hand, trying Poles for treason was a war crime in itself because Poles were not German nationals, and so could not be subjected to German law in that way.

'How should we deal in this case?'

I'm not sure what you mean. Are we supposing that they are Allied soldiers or Axis soldiers?

'don't you agree?'

As I said above, from a criminal law perspective uncertainty is to be construed in favour of the accused. From a historical perspective, well I suppose it's a question of what you think is more likely than not.

[Hecht]

Thanks for replying, I was just try to understand how should we consider an uniformed General ordering the execution of 12 persons which he doesn't not even know personal details of, if they were actually traitors, French Nationals or whatever.
How should a deliberate mass-murder of 8 unidentified persons by an High General be considered in this case?

What I'm trying to point out is that, standing to what you say, any General of any Army on the earth could have ordered to execute unidentified people just because considered as "Traitors": the meaning of this is that I'm allowed to execute anybody people I wish, without further investigation, as far as suspect they are from my country and I say that I consider them "Traitors".
Looks like a "License to Kill" to my eyes.

[PFLB]

'Looks like a "License to Kill" to my eyes'

As I said above, the deterrent against such arbitrary behaviour is that if a foreign national is mistakenly executed then it will be a breach of international law and perhaps a war crime. Hence, the illegal application of German treason law to Poles in the incorporated Eastern territories was found to be a war crime in The Justice Case, because the domestic law of an occupying power cannot be extended to the inhabitants of occupied territories in that way. Nowadays the rules of international humanitarian law are also stricter, in the sense that it is expressly provided that in cases of doubt a person is presumed to be protected as a POW or foreign civilian.

[Hecht]

'Looks like a "License to Kill" to my eyes'

As I said above, the deterrent against such arbitrary behaviour is that if a foreign national is mistakenly executed then it will be a breach of international law and perhaps a war crime.

A deterrent that we can consider, in this case at least, almost useless, since appears quite clear that there might be chances that not all the 12 executed were actually French Nationals, thing that could have been verified just throu further investigation\trial by Le Clerc's stuff, but that there's no evidence that was done whatsoever.