Specially Protected Persons in Combat Situations (new title)

[jmm99]

We find some interesting history here.

In olden days (say, the 18th century), the Laws of War recognized the right of a field commander (on land or at sea), in his sole discretion, to summarily execute a pirate, spy or other war criminal.

While recognizing that ultimate power, two rather well-known US commanders appointed "military tribunals" to at least confirm the guilt of war criminals - George Washington (trials of Maj. John Andre and Joshua Hett Smith) and Andrew Jackson (trials of Arbuthnot and Ambrister).

See, Marmon et al., Military Commissions (THE JUDGE ADVOCATE GENERAL'S SCHOOL, Charlottesville, Virginia, April 1953), pp.6-7 (still the definitive history of US military commissions).

Marmon posits a commander's personal rationale for using tribunals as follows (id., p.10 pdf):

It is probable that military cammissions and tribunals of a similar nature came into being because commanders no longer wished to bear the sole responsibility when the liquidation of a pirate, a spy, or an otherwise unlawful belligerent appeared necessary or expedient.

A case originating in the Natal (id., pp. 10-11 pdf, n.26), provides the larger rationale for some formalization of the on-site process:

26. In Tilinko v. Attorney General for Natal (95 Law Times Report, N.S., 1854 (1907), the Earl of Halsbury expressed this opinion: "If there is war, there is the right to repel force by force; but it is found convenient and decorous, from time to time, to authorize what are called 'courts' to administer punishment, and to restrain by acts of repression the violence that is committed in time of war; instead of leaving such punishment and repression to the casual action of persons acting without sufficient consultation, or without sufficient order or regularity in the procedure in which things alleged to have been done are proved.

So, by WWI, summary execution was out; but the door was left open for military commissions in the granddaddy of FM 27-10, The Rules of Land Warfare (1914) (the same in the 1934, 1940 & 1944 revisions, under which my dad fought his war):

40. Duty of oflcers as to status of troops.- The determination of the status of captured troops is to be left to courts organized for the purpose. Summary executions are no longer contemplated under the laws of war. The officers' duty is to hold the persons of those captured, and leave the question of their being regulars, irregulars, deserters, etc., to the determination of competent authority. Land Warfare, Opp , par. 37.

Military tribunals (other than courts-martial, including military commissions) are still available under Article 21 (10 USC 821):

§ 821. Art. 21. Jurisdiction of courts-martial not exclusive

The provisions of this chapter conferring jurisdiction upon courts-martial do not deprive military commissions, provost courts, or other military tribunals of concurrent jurisdiction with respect to offenders or offenses that by statute or by the law of war may be tried by military commissions, provost courts, or other military tribunals.

Held constitutional (then Article 15), Ex Parte Quirin, 317 U.S. 1 (1942).

Regards

Mike