Military justice by POWs

German POWs arrive on June 20, 1943 for physical examination
and initial POW processing at Naval Operating Base Norfolk
Hospital in Norfolk, Virginia. Photo courtesy of the U.S. Navy. 

Can Prisoners of War (POWs) administer their own military justice? Historian and attorney Dr. Mark Hull shares interesting stories and a legal paradox in the Jan-Feb 2020 edition of Military Review.

Dr. Hull begins with stories he unearthed of two groups of German POWs in World War II. Each group suspected that a collaborator or informant was in its midst. In each case a suspected informant was identified, investigated, tried, and killed by other POWs in ad hoc drumhead justice.

Would we do the same? The U.S. Code of Conduct, promulgated in 1955 by President Eisenhower, calls for the formation of a POW hierarchy. "If I am senior, I will take command. If not I will obey the lawful orders of those appointed over me."  The Code of Conduct calls the offense of "informing" on the group "despicable" and "expressly forbidden." And, "the responsibility of subordinates to obey the lawful orders of ranking American personnel remains unchanged in captivity." Thus, without explicitly saying so, the Code of Conduct would seem to condone the same kind of rough justice that the German POWs administered to their own.

The Code of Conduct, however, is at odds with the Geneva Conventions. In a commentary to the 1949 Geneva Convention Relative to the Treatment of Prisoners of War, the drafters stated, "During the Second World War, some camp commanders permitted disciplinary powers to be exercised [in cases of offenses committed by one prisoner of war against his fellow prisoners of war] by the prisoners' representatives or even by a tribunal composed of prisoners of war. This practice is now forbidden."

Dr. Hull highlights this important but previously unappreciated contrast in two leading authorities relied upon by the U.S. military. He concludes:

Is there a balancing point between the calming rules of the Geneva Convention, the imperative that soldiers in captivity are answerable for crimes they commit while prisoners, and the simple need for self-preservation? At the very least, the Code of Conduct should be rewritten in accord with the controlling language of the Geneva Convention, and other language in the code should be changed to reflect the ideal that prisoners do not have disciplinary power over other prisoners, regardless of circumstances. Whether that is sufficient to deter and regulate future prisoner misconduct or criminal behavior in captivity remains to be seen. At the very least, we should make it clear up and down the force that the Code of Conduct is not what it at first glance appears to be.

Congratulations to Dr. Hull for this important and interesting article.