wales@ucla-cs.UUCP (11/15/84)
I was recently told a semi-apocryphal World War II story which I con-
sidered to be quite impossible. The gist of the story is this:
(1) A group of U.S. Army men is attacked by a group of German civilians.
At least one U.S. soldier is killed in the attack. One German
civilian is taken prisoner.
(2) By coincidence, it happens that the civilian prisoner and one of the
U.S. soldiers are old friends from a pre-war stay in Germany by the
American. An emotional reunion ensues.
(3) As a result of the attack, the commanding officer of the group of
U.S. soldiers orders that the civilian prisoner be shot the next
morning at dawn -- and for inscrutable (probably sadistic) reasons
known only to himself, orders the soldier who is the prisoner's old
friend to be a part of the firing squad.
(4) The soldier, citing the old friendship between himself and the
prisoner, refuses to participate in the execution.
(5) The next morning, the soldier in question is shot (along with the
civilian prisoner) for disobeying a direct order by a superior
officer (an offense which, under U.S. military law, can be punished
by death in time of war).
I am highly skeptical of the above story -- both as to whether it actu-
ally happened and as to whether it COULD have happened -- because of the
following points:
(1) Summary execution of a civilian prisoner would have been forbidden,
both under long-standing U.S. legal principles (which were later
used against Lt. Calley in the My Lai massacre incident in Vietnam),
and probably also under the 1907 Hague Convention Respecting the
Laws and Customs of War on Land.
In reference to the Hague Convention, note particularly Article 4
(requiring humane treatment of prisoners of war); Article 23 (for-
bidding the killing of prisoners who surrender -- might this also
apply once the prisoner had been disarmed and was in secure custo-
dy?); and Article 50 (forbidding general reprisals).
In the Calley decision -- US v. Calley, 22 USCMA 534 (1973) -- note
particularly that enemy prisoners are not subject to summary execu-
tion (22 USCMA 534, at 540), and that a soldier has a duty to dis-
obey a clearly illegal order (at 541-42). In citing US v. Calley, I
realize that it postdates WWII by thirty years -- but the principles
on which this decision was based date back to the early 1900's.
Would the situation have been different if the U.S. commander had
previously gone through the motions of declaring "martial law" or
some such rules in the area? I would think not, because if this
were possible, it would simply provide an "out" for any warring
country that wanted to disregard the Hague Convention or other in-
ternational agreements in a given situation. Unfortunately, I don't
have a copy of the Hague Convention in front of me (it's back in a
library on the other side of campus), and I don't remember what
strictures (if any) it places on martial law.
(2) Since the commanding officer's order that the prisoner be summarily
executed would have been flatly illegal, he could not legally have
ordered one of his men to participate in said "execution" -- and the
soldier would not only have been free to reject said order, but in-
deed would have been obligated to do so (cf. the later Nuremberg
trials and the "I was only acting under orders" defense, as well as
the My Lai massacre and the ensuing Calley case cited above).
One might perhaps quibble that the soldier was disobeying his com-
mander's "order" for the wrong reason (not because it was an illegal
order, but because he could not have brought himself to shoot a
friend even if the order were legal).
I also thought (though I have been unable to find specific reference
to this) that there was some international convention which said a
soldier could not legally be ordered to participate in an execution,
period. I thought I heard once that disregard of this rule was in-
volved in at least some of the Nuremberg cases, but I might easily
have heard this from an unreliable source or simply have remembered
incorrectly. Can anyone with the "hard facts" enlighten me?
(3) Under U.S. military law at least, summary execution of a soldier in
the field for disobeying an order of this type seems totally incon-
ceivable. The Articles of War (the military justice code in effect
during WWII, and predecessor to the Uniform Code of Military Jus-
tice) required that the death penalty could be imposed only by a
general court-martial, and had to be affirmed on review by both the
Court of Military Appeals and the President of the United States.
(4) To my knowledge, only one U.S. serviceman was ever executed for a
violation of the Articles of War during WWII -- that was one Private
Slovik, who was convicted of desertion. Even he was put to death
only after an extended legal procedure.
Not only is the Slovik case seemingly a prime illustration of my
point #3 above, but it also would seem to put the lie to the story
in question by simple process of elimination.
So, it would seem that this story is utterly fictional, fanciful, and
erroneous -- at least insofar as it is alleged to have happened (or even
to have been possible) among U.S. servicemen in World War II. For all I
know, situations like this could have happened in another time and/or in
the services of other countries.
Some of my friends, however, insist that I am being too legalistic here;
that "anything" was possible in time of war; that a declared state of
"martial law" or some such would have given the commanding officer es-
sentially unlimited power to do whatever he felt was required to main-
tain order and discipline; etc., etc.
I welcome any comments, clarifications, or whatever. If possible,
please cite actual sources (treaties, statutes, cases, etc.).
--
Rich Wales
UCLA Computer Science Department
3531 Boelter Hall // Los Angeles, CA 90024 // (213) 825-5683
ARPA: wales@UCLA-LOCUS.ARPA
UUCP: ...!{cepu,ihnp4,trwspp,ucbvax}!ucla-cs!walesron@brl-tgr.ARPA (Ron Natalie <ron>) (11/20/84)
> Some of my friends, however, insist that I am being too legalistic here; > that "anything" was possible in time of war; that a declared state of > "martial law" or some such would have given the commanding officer es- > sentially unlimited power to do whatever he felt was required to main- > tain order and discipline; etc., etc. > > I welcome any comments, clarifications, or whatever. If possible, > please cite actual sources (treaties, statutes, cases, etc.). any comments? I knew we shouldn't have shot Lt. Nedemeyer.