question about Geneva convention

[collectorGD]

Hi

I have a question: is it true that retaliation against civilians in certain circumstances is possible when the occupying army is attacked by resistance? When that army makes a reprisal to discourage future attacks, can it be legal? i know that since 1949, this is impossible but before?

kind regards
T

[phylo_roadking]

T - it's a very mucky area of it....but it's not the GENEVA Conventions that apply, it's the Hague Conventions, specifically the HRLW, the Hague Rules on Land Warfare, or Hague IV http://avalon.law.yale.edu/20th_century/hague04.asp

1. First of all - the laws and customs of war are VERY clear on what classes of civilians CAN legally bear arms...my empasis in places -

Article 1.
The laws, rights, and duties of war apply not only to armies, but also to militia and volunteer corps fulfilling the following conditions:

To be commanded by a person responsible for his subordinates;

To have a fixed distinctive emblem recognizable at a distance;

To carry arms openly; and

To conduct their operations in accordance with the laws and customs of war.

In countries where militia or volunteer corps constitute the army, or form part of it, they are included under the denomination "army."

In other words - under certain conditions civilians CAN take up arms WHILE A WAR IS GOING ON... This is important to understand - because once a war is over and a nation has been "Occupied", military action by civilians in ANY circumstance is NOT permitted under the Rules, in the sense that there's nothing specifically against it - but there's NO LEGAL PROTECTIONS for anyone fighting as a partisan!

The Occupiers ARE free to execute partisans after a minimum "court martial" to confirm they were/were not guilty of whatever action they're being accused of. Military laws apply I.E. those of the Occupying army; partisans have NO rights to be put into the civil law system of an Occupied nation and tried for murder.

2. The execution of civilians in reprisal.

This is where things get even more confusing . Yes, it IS permitted, in that most combatant nations' military regulations, quoting the HRLW, told their officers and men it WAS ok to shoot civilians....but NOT in "pure" reprisal; the legal way was to take x-number of "hostages" and give x-amount of time for their compatriots to hand over or identify the partisans in their midst - and if this is NOT done THEN shoot the hostages.

There was a catch! The NUMBER of hostages you could take and shoot. There wasn't a specified limit BUT it was quite clear that you weren't supposed to overdo it! And this principle was enshrined in the outcome of the now-legendary "Hostages Trial" http://en.wikipedia.org/wiki/Hostages_Trial...

...and it's important to note that THIS is the point in time when the customs began to change, because of the outcome of this trial and all the legal protections afforded "francs-tireurs" were later written into the 1949 Geneva Conventions to protect partisans AFTER an Occupation was in place and the actual "land warfare" bit was over!

THIS is the bit of that Wiki entry that's relevant to the SECOND WORLD WAR treatment of partisans...

The tribunal had to deal with two pressing questions:

were partisans "lawful belligerents" and thus entitled the status of prisoners of war?
was taking hostages and reprisals against civilians as a "defense" against guerrilla attacks lawful?
On the question of partisans, the tribunal concluded that under the then current laws of war (the Hague Convention No. IV from 1907), the partisan fighters in southeast Europe could not be considered lawful belligerents under Article 1 of said convention. On List, the tribunal stated

"We are obliged to hold that such guerrillas were francs tireurs who, upon capture, could be subjected to the death penalty. Consequently, no criminal responsibility attaches to the defendant List because of the execution of captured partisans..."

So - as of WWII...partisans were francs-tireurs...but ones who were OUTSIDE Hague IV Annex Article 1.

Obviously - though legal, this was unsatisfactory! So was goin' to change bloody soon!

On the matter of killing HOSTAGES, however, the court found AGAINST List! But what is important is WHY...

Regarding hostage taking, the tribunal came to the conclusion that under certain circumstances, hostage taking and even reprisal killings might constitute an allowed line of action against guerilla attacks. In the tribunal's opinion, taking hostages (and killing them in retaliation for guerilla attacks) was subject to several conditions. The tribunal also remarked that both the British Manual of Military Law and the U.S. Basic Field Manual (Rules of Land Warfare) permitted the taking of reprisals against a civilian population. (The British manual didn't mention killing, the U.S. manual included killing as a possible reprisal.) Nevertheless, the tribunal still found most of the accused guilty on count 1 of the indictment because it considered the acts committed by the German troops in excess of the rules under which the tribunal considered hostage taking and reprisal killings lawful.

In other words - it WAS legal to kill them....what List and co. had done was take and kill TOO MANY!

As you can see - that court judgement - made on the basis of the laws and customs of war as they stood then...threw into very sharp relief some of the contradictions in the old Hague Conventions That is WAS legal in various circumstances to murder civilians!

And THAT is why within a very short time - things changed.

[collectorGD]

Thanks for your clear explanation!!

kindest regards,
T

[TimoWr]

collectorGD (Rammkommando) I've noticed that you copy-pasted phylos answer to a Dutch WW2 forum for children to support your opinion that Heinrich Boere was not a war criminal. In my opinion this is quite odd because Boere volunteered for an excecution squad formed to kill unexpecting and unarmed civilians without a trial because they were presumed to be in some way connected to the resistance. It would have been a different matter if he had killed actual dangerous terrorists in a shoot out or even if the presumed member of the resistance was armed and dangerous. But unarmed civilians who are only suspected of contact with the resistance (note: not suspected to be active resistance fighters but only to have contact with them) should be arrested, interrogated and - if still under suspision - tried in a court of law. They should not be gunned down on their doorstep by a disquised dead squad. These killings were even disquised as ordinary crimes from unknown thugs and not claimed by the government or the SS as a warning for the Dutch population in general and the resistance in particular. If you work for a criminal regime you have to face the consequences of following criminal orders. Killing unarmed civilians who are only suspected of contact with the resistance is such a criminal order.

[phylo_roadking]

But unarmed civilians who are only suspected of contact with the resistance (note: not suspected to be active resistance fighters but only to have contact with them) should be arrested, interrogated and - if still under suspision - tried in a court of law.

This is of course quite true - that's the third set of posible victims of the various loopholes on the laws and customs of war...with one caveat...

It doesn't need to be a CIVIL court of law, with the full mechanism of the law and jurisprudence as we would recognise it in each occupied nation. Ther should indeed be a trial to determine guilt etc. - but the loophole is there that these can be courts martial, and very cursory ones at that - as long as they ARE held

In other words - unlike THIS...

They should not be gunned down on their doorstep by a disquised dead squad. These killings were even disquised as ordinary crimes from unknown thugs and not claimed by the government or the SS as a warning for the Dutch population in general and the resistance in particular.

...there should be SOME element of transparency/visibility.

HOWEVER -

Killing unarmed civilians who are only suspected of contact with the resistance is such a criminal order.

Here's the oddity. If done under an "Occupation" prior to the official end of a war it's a war crime - if done after an agreement terminating the state of war between two particular nations has been signed/ratified - it's not a "War" crime and punishable as such....it's Murder, and should be pursued in the end via the civil justice system!

Again - you can see WHY some of the 1949 Convention changes to the "laws and customs of war" were laid out as they were!

[TimoWr]

Exactly, but all this turns TS opinion in the Dutch forum upside down. He wrote:

Dienen soldaten niet veroordeeld te worden door een militaire rechtbank ipv een burgerlijke rechtbank?

http://wo2forum.nl/viewtopic.php?f=4&t=24731 - Rough translation: shouldn't soldiers be tried by a military court instead of a civil court?. He then continues to advocate his opion that Boere should have been tried by a military court and that this military court should have acquitted him because these were legal military murders according to the Geneva Convention. I understand from Phylos answers that TS is wrong in this matter because the Silbertanne murders were committed after the war between Nazi Germany and the Netherlands ended on May 15, 1940, which means the civil court that is currently trying Boere is the right court for this case - correct?

BTW, I seriously doubt if TS has a point with his opinion that the Silbertanne murders were legal military killings. Like I said before: I'd say there's nothing legal about ambushing unarmed citizen who are suspected to be somehow connected with the resistance and in a way these murders appear to have been nothing more than senseless revenge by a frustrated criminal government. Note that the SS assasins like Boere were not wearing uniforms, worked silently under cover of darkness, used false license plates and that the government or the SS never claimed these murders because the existence of the death squad was even kept secret within the SS organization. It is interesting to note that SS-Brigadeführer Schöngarth ended the Silbartanne campaign as soon as he heard of its existence, because he feld that assasinating random suspects because they are unable to find the actual resistance fighters would tarnish the reputation of the SD.

From Edwin Meindesma's website http://www.waffen-ss.nl

The 'SILBERTANNE' murders and Sonderkommando Feldmeijer

The 'SILBERTANNE' murders and Sonderkommando Feldmeijer In 1943 Dutch resistance fighters committed a series of attacks on several collaborators, killing a number of leading Dutch 'national-socialists'. General Seyffardt, the commander of the Dutch Volunteer Legion, was among the victims and the German occupiers as well as the Dutch collaborating movement had no choice but to react. Rauter and the Germanic SS in the Netherlands, led by Henk Feldmeijer, all shouted for revenge. They got it in the so-called 'Silbertanne' Aktion. Rauter and Feldmeijer had been looking for a fitting reply to the increasing illegal Dutch activities. Both gentlemen had expressed their preference for the execution of anti-German Dutchmen early on. Mussert did not approve of executions despite the high frequency with which NSB men were the victim of such liquidations in 1943. He did concur with so-called reprisal-deportations of anti-German Dutchmen to the prison camps, however.

On 5 September 1943 the Generalkommissare Rauter, Wimmer, and Ritterbusch decided in secret to commit 'assassinations' as a reprisal to resistance attacks. In practice, this meant that for every attack on a 'national-socialist individual' three (initially ten) people from the region in question who were known to be 'anti-German' would be killed by Dutch SS men. The Sicherheitsdienst (SD), which was represented by Brigadeführer Erich Naumann (former commander of Einsatzgruppe B) in the Netherlands, would assist in these actions by supplying the assassins with cars, false license plates, false Ids, etc. Because of the secretive nature of the operation it was decided to give it a code name. After the name 'Blutbuche' (bloody bash) had been disapproved because it was too transparent the name 'Silbertanne' (silver pine) was chosen.

What remained was the actual formation of the assassin squads, a task which was given to Feldmeijer. He secretly recruited a number of men (three to six) from the five regional Standaarden of the Germanic SS in the Netherlands who were to form the regional assassin squads. Lists of potential victims, to which the NSB and the Germanic SS in the Netherlands made a large contribution, were compiled. The final decision on who was to be killed was with the chiefs of the Aussenstellen of the SD, who were officially informed about 'Silbertanne' on 13 September 1943.

In the night of 28 September 1943 the first 'Silbertanne' assassinations were committed. The murders were a reaction to three attacks committed by the resistance in Southeast Drenthe. Under command of the regional SS-Standaard leader T.J.S. van Efferen a garage keeper, a surgeon from Meppel, and a teacher from Staphorst were killed in silence. The next day the papers reported the murders and wrote about the possible cause, running headlines like: 'the police are at a loss'. The 'Silbertanne' murders continued for eleven months (late September 1943 to early September 1944), claiming the well-known writer A.M. de Jong as one of the victims of these ruthless reprisals.

Historian Lou de Jong distinguished two phases in 'Silbertanne'. In the first phase (until April 1944) the murders (33 in number) were committed by the Standaarden themselves, who each had a squad of about five assassins at their disposal. In the second phase (until September 1944) the murders (at least 21) were committed by a single commando, namely Sonderkommando Feldmeijer. Why had the procedure been changed?

As it turned out the Germanic SS-Standaarden in the Netherlands were not all capable of performing the assassinations in a manner that was to the satisfaction of their commanders. According to Feldmeijer and Rauter, the composition of the assassin squads (who were all volunteers for the Eastern front) was changed too often. Only the most fanatic, complemented by several new men to make a total of fifteen, remained in the end. This group was placed directly under Feldmeijer's control in the Sonderkommando Feldmeijer. The disgraceful performance of this group was much better appreciated by Rauter and after only a few months the first military honours were awarded.

Other prominent nazis in the Netherlands were less happy with Aktion 'Silbertanne'. Naumann's replacement, SS-Brigadeführer Eberhard Schöngarth, ended this campaign of murder as soon as he learnt of its existence. He was concerned the murders would give the SD an even worse reputation and expose the fact that they were unable to find the resistance fighters and therefore lowered themselves to committing assassinations. The immediate execution of resistance fighters (Niedermachungsbefehl) had by this time been allowed as well, making a campaign of terror such as 'Silbertanne' unnecessary. The Germanic SS men from Sonderkommando Feldmeijer were given a new task from early September 1944: guarding Feldmeijer himself.

Not all the names from the assassination squads are known. After the war Feldmeijer's chief of staff Jansonius gave the following names: J.T.S. Van Efferen, C.F. Mink, Smid and Lantinck. It is furthermore known that the Germanic SS men L.Th. van Gog and D. Bernhard killed the writer A.M. de Jong. Even though the operation was officially a Sicherheitspolizei operation, it was performed by Dutch veterans from the Eastern front who were members of the Germanic SS. Those involved, as far as they were arrested, were condemned to very harsh sentences after the war. Rauter, for example, was condemned to death partly for his role in 'Silbertanne'.

Source: http://www.waffen-ss.nl/silbertanne-e.php

[collectorGD]

I want to clear up some things:

TimoWr, I never used Phylos explanation to support MY opinion! When I heard about the condemnation of Boere, I had a strange feeling. How can a soldier be condemned by a civil court etc etc. So I began to search on the internet how that was possible but I couldn't find a lot. So I turned to Feldgrau because there are some specialist with knowledge about law and warfare. When I got the detailed explanation of Phylos, I copypasted his answer (with the information that the text came from Feldgrau of course) with my personal comment that this was interesting prior to my question. But after the information I got from Phylos, I did't questioned anymore the condemnation of Boere because, like you said TimoWr, these killings were illegal! You can check that with the posting dates of feldgrau and WO2 forum.

Phylos, thanks for your comments about this subject. I copypasted your text to the WO2 forum because the knowledge about the Hague Convention is rather little on that forum. Forums are places where people can learn something from others so that's why I did it.

Kindest regards,
T

[phylo_roadking]

http://wo2forum.nl/viewtopic.php?f=4&t=24731 - Rough translation: shouldn't soldiers be tried by a military court instead of a civil court?. He then continues to advocate his opion that Boere should have been tried by a military court and that this military court should have acquitted him because these were legal military murders according to the Geneva Convention. I understand from Phylos answers that TS is wrong in this matter because the Silbertanne murders were committed after the war between Nazi Germany and the Netherlands ended on May 15, 1940, which means the civil court that is currently trying Boere is the right court for this case - correct?

Correct - it has to do with the state of relations between two nations when the events occur.

There are THREE possible states...and under each the legal provisions are different;

1/ Open war

2/Occupation

3/Peace, as in a negotiated or agreed END to a war. You could not have "crimes against the laws and customs of war" if there wasn't a war going on!

Rough translation: shouldn't soldiers be tried by a military court instead of a civil court?.

It depends what laws are broken at what time and in what circumstances. TECHNICALLY - the pre-war Conventions meant that suspected "war criminals" SHOULD have been sent to the Hague by the international community I.E. the LoN and tried there in Neutral Holland under a specially-convened-for-the-duration-of-the-trial War Crimes Court...guess what major element of the Conventions lasted to be combined with the 1949 revision???

Unfortunately - "due to unforeseen circumstances" Holland didn't remain Neutral I would need to do some more research to find out WHY the Allies didn't wait until the Hague arrangements were reconstituted....or didn't accelerate this especially for the post-war trials - but instead convened the IMT at Nuremberg...

To return to this, however...

...because the Silbertanne murders were committed after the war between Nazi Germany and the Netherlands ended on May 15, 1940, which means the civil court that is currently trying Boere is the right court for this case - correct?

...He then continues to advocate his opion that Boere should have been tried by a military court and that this military court should have acquitted him because these were legal military murders according to the Geneva Convention.

This comes firmly under option TWO - "Occupation"...

Civilians are "noncombatants" under Hague ....well, duh!

SECTION III
MILITARY AUTHORITY OVER THE TERRITORY
OF THE HOSTILE STATE
Art. 42.
Territory is considered occupied when it is actually placed under the authority of the hostile army.

The occupation extends only to the territory where such authority has been established and can be exercised.

...and when a territory is Occupied...

Art. 46.
Family honour and rights, the lives of persons, and private property, as well as religious convictions and practice, must be respected.

So it's clear that killing a non-combatant without due process of civil law for an Occupied area is a war crime...in the sense that yes, it's a breach of the Hague Rules of Land Warfare....but that means the ACTUAL crime committed against a person or persons is Murder!

There is exactly TWO things that could happen; a defendant could be tried for Murder at a War Crimes Tribunal if so-constituted....OR tried for Murder in a civil court. It's actually likely that nowadays a war crimes tribunal wouldn't actually carry out a specific Murder trial - BUT would instead establish there IS a civil case to answer and find the accused liable for civil trial in under the laws of the nation where the crime was alleged to have been committed and order them returned for trial there.

In other words - it's establishing that a crime HAS been committed under "the laws and customs of war"...that there IS a case to be answered....and transferring the accused into the correct legal process, the justice system of the nation where the crime was committed. And as far as I can see...Boere would thus end up by whatever mechanism - in a civil court on the Netherlands!

But he could not and should not be tried under Court Martial.

[phylo_roadking]

Just realised!!!

I would need to do some more research to find out WHY the Allies didn't wait until the Hague arrangements were reconstituted....or didn't accelerate this especially for the post-war trials - but instead convened the IMT at Nuremberg...

With the formal ending of the State of Germany for some years after the Surrender....there WAS no German civil justice system capable of dealing with the civil crimes that were embedded elements of the charges brought against Nazi war criminals until it was reconstituted by the Allies!

[TimoWr]

But Boere is a German national. Should this not mean that he can be tried in a German civil court as is the case now? Also note that a Dutch civil court tried Boere in 1949 which resulted in a death sentence but he had already escaped from jail in 1947 and escaped to Germany. The Germans do not extradite German nationals despite repeated requests from the Dutch government.

[phylo_roadking]

But Boere is a German national. Should this not mean that he can be tried in a German civil court as is the case now?

Frankly, I don't see an issue with that at all - but it's a new reciprocity principle that has only grown up in the last decade or so IIRC...BUT - and as usual - there's a wrinkle; in cases like this it would normally be the justice representatives of the Dutch government seeking his prosecution in Germany...which they're not! THEY want him back

HOWEVER - I would normally have a query with his being tried twice for the same crimes I believe that a protest was lodged by his lawyers under the "double jeapordy" rule because of this - that he couldn't under EU laws be tried for the same crime twice!...

...and IIRC one court in Germany had previously ruled that it would not force him to serve his Dutch sentence in a German prison because he was absent from his trial, having fled to Germany. Trials in absentia are not recognised under the present day German justice system...given some of the abuses of the Third Reich era! So it was counter-argued successfully to the defence plea of "double jeapordy" that he wasn't validly tried previously! I.E. that this is his first valid trial on these charges....as least as the German justice system sees it!

No "Get out of jail free" card there, then!

[phylo_roadking]

I do find one thing strange about the current proceedings however...

Germany is unwilling to extradite its citizens - but it IS willing to send one of its citizens to trial charged with a crime that occured outside the territorial limitations of the present-day German justice system? I thought there was to be no legal continuity between the various adminstrative systems of the Nazi era government of Germany and those of the post-war restoration of the nation of Germany...

[lwd]

...
So it's clear that killing a non-combatant without due process of civil law for an Occupied area is a war crime...in the sense that yes, it's a breach of the Hague Rules of Land Warfare....but that means the ACTUAL crime committed against a person or persons is Murder!

There is exactly TWO things that could happen; a defendant could be tried for Murder at a War Crimes Tribunal if so-constituted....OR tried for Murder in a civil court. It's actually likely that nowadays a war crimes tribunal wouldn't actually carry out a specific Murder trial - BUT would instead establish there IS a civil case to answer and find the accused liable for civil trial in under the laws of the nation where the crime was alleged to have been committed and order them returned for trial there.

In other words - it's establishing that a crime HAS been committed under "the laws and customs of war"...that there IS a case to be answered....and transferring the accused into the correct legal process, the justice system of the nation where the crime was committed. And as far as I can see...Boere would thus end up by whatever mechanism - in a civil court on the Netherlands!

But he could not and should not be tried under Court Martial.

But most militaries have laws against murder as well and if defendant was in the military then trial by "Court Martial" would also be a possibility wouldn't it?

[phylo_roadking]

But most militaries have laws against murder as well and if defendant was in the military then trial by "Court Martial" would also be a possibility wouldn't it?

Quite true - but in peacetime a War Crimes Tribunal would ideally be returning an accused person for trial for Murder in the country he committed the crime - NOT handing him back to his OWN army for trial and punishment under court martial! Also - in the case of the various elements of the Wehrmacht and SS/W-SS, they were officially disbanded and/or branded criminal organisations after WWII, so they didn't exist to hold courts martial!

[lwd]

Ahh, I see your point now. Was thinking in more general terms. When dealing with the particular case at hand you are quite right.