But is not the same, sometimes the tank crewmen bailed with handheld antitank weapons, so still was a menace for the armored vehicle and a creditable target for destruction.
I insist in my idea, to kill a pilot in a parachute is illegal, horrific and unethical, I dont care if somebody would be lawfully punished or not, but is not fair and shouldnt be taken lightly as a simple “fact of war”, there is no justification whatsoever.
That is your personal viewpoint, and it is one that I have sympathy with, and the majority of Allied and German pilots took the same view, but the legal standpoint is that it wasn’t a crime despite what Drake claims ( if it was already a crime why the need to make it one in the 1947 treaty ?)
Dowding the commander of Fighter Command during the Battle Of Britain was once asked at a dinner by Churchill, what his views were on the shooting of pilots who had baled out was.
Dowding stated that in his view it was acceptable on morale grounds to shoot any pilot who had baled out over his own territory as he remained a future threat, but that it was unacceptable to shoot any pilot who was bailling out over his enemies territory as he would become a prisoner and therefore was not a future threat.
§ 137. Difference between what we have a right to do and what is barely allowed to be done with impunity between enemies.
The lawfulness of the end does not give us a real right to any thing further than barely the means necessary for the attainment of that end. Whatever we do beyond that, is reprobated by the law of nature, is faulty, and condemnable at the tribunal of conscience. Hence it is that the right to such or such acts of hostility varies according to circumstances. What is just and perfectly innocent in war, in one particular situation, is not always so on other occasions. Right goes hand in hand with necessity and the exigency of the case, but never exceeds them. …
§ 140. Limits of this right.
But the very manner in which the right to kill our enemies is proved, points out the limits of that right. On an enemy’s submitting and laying down his arms, we cannot with justice take away his life. Thus, in a battle, quarter is to be given to those who lay down their arms; …
§ 148. The right of making prisoners of war.
But all those enemies thus subdued or disarmed, whom the principles of humanity oblige him to spare, — all those persons belonging to the opposite party, (even the women and children,) he may lawfully secure and make prisoners, either with a view to prevent them from taking up arms again, or for the purpose of weakening the enemy (§ 138) …
As you see, you don’t need to be in captivity to be considered to have laid down your arms. A pilot who abandoned his machine in aerial combat has submitted in this battle. Not even to mention that they might be injured, etc.
Quoting an unattributed source doesn’t help, and it’s particularly unhelpful as it’s from Emmerich de Vattel’s Law of Nations published in 1758, about one and a half centuries before aeroplanes were even invented, let alone used in war. It was published 25 years before the Montgolfier brothers got the first hot air balloon off the ground. Vattel didn’t turn his mind to the issue of aerial warfare and shooting pilots in parachutes or fleeing crashed aircraft.
If we’re going to go back to irrelevant earlier periods, why not pick the medieval period when noble prisoners could be ransomed and the rest killed or enslaved?
You still haven’t demonstrated how civil law applies as you previously asserted.
Your persistent avoidance of the issue by raising other issues suggests you can’t demonstrate your point.
The expression ‘lay down their arms’ is an old fashioned term for the act of surrendering. Pilots baling out of their aircraft are not surrendering, just attempting to escape from a deadly situation.
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And yes, American fighter pilots could be ruthless bastards like everyone else. And as far as “surrender (an aircraft) in mid-air,” this is quite silly. One must insure the destruction of the aircraft. If the pilot wants to surrender, then he should bail out!
One personal acedote on this - my family was friends with a retired priest (an MBA type that ran the Buffalo parochial [Catholic diocese] school system for a while). When he was younger, in the mid-1950s, he had relatives in Germany that he visted. One of the sons about his age was a former Luftwaffe pilot that wanted nothing to do with the “American pigs.” Apparently, he held a grudge for his rough treatment at the hands of US soldiers after he was shot down.
So who knows?
In any case, I doubt strafing civilians was very common as P-51/P-47 pilots probably had better things to blow up. And as far as surrendering aircraft still airborne, there was a recent History Channel episode of “Dogfights” that featured the P-47. On of the stories shown was about a pilot whose P-47 was badly shot up during a chaotic mass-dogfight between Me-109s and P-47s circa 1944 I believe. He shot down two, I think, and then had his engine peppered by one of several FW-190s joining the fight. Engine oil began spewing all over his cockpit window and he began to smoke, so he had no choice but to try to hightail it out of there - with an FW-190 in tow. The Luftwaffe pilot followed him for some miles, firing on him and trying to ‘finish him off.’ Twice, the Luftwaffe pilot pulled his FW-190 up parallel to the P-47 and smiled and waved, then dropped back to continue firing. Fortunately, due to the ruggedness of the P-47, the FW-190 ran out of ammo before and pulled up one final time to saluted, then peeled off. The USAAF pilot made it back to base safety before his engine seized shortly after landing.
Of course, the FW-190 pilot was probably giving him a chance to “surrender” by bailing out. But, the P-47 aviator probably thought he had a better chance of getting out alive by staying with his airplane. In any case, he was under no illusions about “putting down his landing gear”.
Well, law is like a layer cake as you might know. As civil law determines the relationships among persons and/or legal entities it always applies in the legal sphere of a nation (such as its air space) and is merely superceded or better overruled by “higher” law in the case of conflict of law. A good example of that concept is for example that here in hassia the death penalty is still legal but this is overruled by federal law, which states it is not, so they never bothered to change it. Same goes here, the international law provides protection to the soldiers for their actions in combat should they meet certain requirements, meaning follow the rules of engagement. You seem to be under the impression that international law generally allowed soldiers to kill everything that moves, if not mentioned otherwise, which is the wrong concept from the very beginning.
They were allowed to kill under protection of law if certain conditions were met. That’s the basic principle of the law of war and the explicit mentioning of certain things is just a double check. And I quoted de Vattel for the same reason: principles. Hague states the principles of law of nations should apply in cases not covered and de Vattel is the foundation of the law of nations, it’s principles clearly visible in said articles and these principles can even fly. And both legal works are basically screaming: you are not allowed to kill persons who don’t have the means to defend themselves, who are injured or otherwise in an extraordinary situation in which they have other things to do than to fight, for example if they are shipwrecked. Of course it is interpretation, but law is not an exact science. But it becomes obvious, that you wouldn’t accept any other article than something like that:
You are not allowed to shoot a pilot bailed from a me109 on a monday morning 9:00 am over southern germany, if you happen to be in a p51.
@redcoat: what is your definition of a surrender, i already made it obvious, that it has nothing to do with captivity.
And for the Paratroopers, they engage in combat, the pilot leaves the combat.
I already pointed out, that every situation needs to be evaluated on its own.
Perhaps, perhaps not. But who was going to enforce this law? The Third Reich?
I’m sure there were varying opinions among American/Allied pilots shooting at Luftwaffe pilots-turned-parachutists. Some probably abhorred it (as I think I would have). Some probably witnessed ruthless actions or heard rumors of Luftwaffe pilots butchering shot up allied aviators…
I never said it would only apply to allied pilots, germans shooting bailing allied pilots are criminals as well imho. But even in war the concept: The other one did it as well doesn’t help when it comes to law. It is understandable from an emotional point of view.
Enforcing is on a completely different page. Even today you couldn’t enforce anything for example against US soldiers, as the US gov thinks foreign rules should only apply to others. I could easily sue a US soldier in a german court if he hit me in a bar, wouldn’t get much out of it though. I’d have to rely on american jurisdiction in that case afaik. Funny part is I think de jure germany is still in a state of war with the US, as there was never a peace treaty, but only an unconditional surrender of the armed forces of the german reich, though the legal status of the FRG in relation to the Reich is unclear, think the specialist are still arguing on that :D.
If civil law is to apply to acts in war, you have to establish all the elements for it to apply.
The first element is jurisdiction of the civil court trying the offence. Jurisdiction is essentially territorial, with extensions to flagged vessels and various, sometimes debatable, territorial waters. A country cannot try people outside its jurisdictional limits. Australia and Japan had no civil jurisdiction for acts committed by or against their men in Malaya or Thailand or the Netherlands East Indies, any more than Britain or Germany had civil jurisdiction for acts committed by or against their men in Yugoslavia or Greece.
The second element is that the offence must be known to the civil law. The only offence applicable to shooting a parachuting or downed pilot is murder. Applying civil criminal offences to war, desirable though it may be from humanitarian or moral viewpoints, is impossible and leads to absurd results judged against what is generally acceptable in war. Civil criminal law never allows acts of aggression, be they minor assaults or murder. If those principles applied in war, it would be impossible ever to attack the enemy. The downed pilot, if he had initiated combat, would in fact be guilty of attempted murder as would the enemy pilot shooting at him as he descended in his parachute or tried to flee his crashed plane The only relevant concept in civil criminal law is self-defence, which is limited to a proportionate response to imminent life-threatening circumstances. If individual soldiers, sailors and airmen were limited to acting only in defence of themselves, others near them, and their property, then they would always have to wait for the attack, which would give the advantage to the attacking side which is breaking the law by attempting to murder them. There is just no place for civil criminal concepts in war.
The third element is that there is no offence unless a court rules that one has occurred. Given the show trials in Germany and the USSR which upheld the wishes of those dominant in the ruling parties, there was no prospect that any German or Soviet pilot was going to be found guilty by one of their courts for anything they did. Conversely, a predictably different approach could be expected where enemy pilots were involved, as with Japan trying under civil law and executing American bomber crew in 1945 for bombing Japan. Oddly enough, the Japanese have never prosecuted one of their servicemen for doing anything equivalent, despite millions of events which could have allowed it.
I would have thought that Grotius, who published On the Laws of War and Peace in 1625, some 135 years before Vattel, is more widely regarded as the founding source of texts on the modern law of nations. In both cases they are merely collators and commentators on international law, not the sources of it. The source of international law is, and always has been, the customs, practices and treaties of nations.
The 1922-23 Hague Rules of Air Warfare provided
ARTICLE XX
When an aircraft has been disabled, the occupants when endeavoring to escape by means of parachute must not be attacked in the course of their descent.
The problem is, those Rules were never adopted. This signifies that nations did not agree that it was the law of nations at the time as there would have been no obstacle to a convention on which there was international agreement. So, it was not the law of nations during WWII that descending pilots could not be shot at.
This position altered in 1977 with the introduction of Article 42 of a Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol 1)
Article 42.-Occupants of aircraft
No person parachuting from an aircraft in distress shall be made the object of attack during his descent.
Upon reaching the ground in territory controlled by an adverse Party, a person who has parachuted from an aircraft in distress shall be given an opportunity to surrender before being made the object of attack, unless it is apparent that he is engaging in a hostile act.
Airborne troops are not protected by this Article.
As for airborne troops, the absurdity of the provision is that if half a planeload get out before the plane is disabled then they’re legitimate targets, and so are the others parachuting “in distress”, but the aircrew even if armed aren’t. And what about the jumpmaster? Is he a legitimate target or not? What if he’s a member of the airborne troops who wasn’t going to jump? Does he get a big flag to fly for the enemy aircraft saying “I may look like a paratrooper, but I’m really aircrew descending in distress.” What about paratroopers wounded in the plane? Are they jumping ‘in distress’? Not easy to work out at a few hundred mph or from 5,000 feet below. What about firing into the paratroopers with aircrew among them? Right or wrong? And so it goes on, with no clarity and no great sense.
Sorry guys but it’s funny to read this thread.
WTF the shoting of the pilots if the Nazy killed a thousands of them in the East during the jumping.
I know for the sure the Luftwaffe killed the soviet paratrupers who jumped fro the damaged aircrafte SINCE the firs days of War in june of 1941.
Honestly speaking there were a Luftwaffe pilots with hommor - but it was a insignificant minority. If to express the situation with Rules of the war in the East( geneva rules or any other) - it was the criminal illegality.
You’re assuming that anyone west of Russia actually cared.
There’s a general acknowledgement in the West that the war in the east was much more savage than in the west.
It’s an unfortunate fact that, underneath that, there is also an unstated attitude that the Soviet lives lost in those conflicts weren’t as valuable, or that people there somehow accepted that different rules applied because it was a more savage war.
Much the same as Hurricane Katrina provoked all sorts of concerns in the US and elsewhere about what happened before, during and after, while many times more people die in floods in places like Bangladesh every few years and nobody gives a stuff.
Now, if an American pilot had been shot down in a chute by a German in Russia with an American journalist to report on it, then …
Regarding British Para’s and RAF pilots: there’s a world of difference between having a big hairy-arsed Para coming at you, once landed, and one of the Brylcream-Boys.
Seriously, are not pilots rendered ineffective when seperated from their aircraft and landing in enemy territory? I expect that if the pilot is bailing-out over his own territory, he could jump in another aircraft and carry on shooting down one’s chums. Of course there is the Chivalric code to consider when speaking of fighter pilots - nonsense though it is.
