A World War Violation of the Geneva Convention

by John McGinnis

I want to thank Julian Ku and his colleagues at Opinio Juris for the invitation to blog. This is my initial effort in cyberspace.

I begin with some interesting information that I recently learned on a trip to the Chicago Museum of Science and Industry at an exhibition of a captured German submarine: the United States once decided, consciously and at the highest levels of government, to violate the Geneva Convention. The incident occurred when in 1944 our navy captured a German submarine and a version of the enigma machine—the equivalent of the German codebook. While the navy also captured the entire crew, it did not notify the Red Cross of their capture or identities. The exhibit itself states that this failure violated the Geneva Convention. Notification would have tipped the Germans off to the substantial possibility that the allies now had a means for breaking their code.

How, if at all, would this decision then differ from a decision today to violate some aspect of the Geneva Convention in order to achieve an objective as important as avoiding disclosure of capturing a code? Certainly, the violation in 1944 was clear and premeditated. It also cannot be argued that it was not certain to inflict very substantial harm. As a result, the relatives of the German seamen thought they were dead for a substantial period, and, I believe in at least one case, the wife of one of the sailors remarried. Such grief and disorientation of lives might be thought of even greater consequence than the humiliation of a few unapproved interrogation techniques. Would the decision be different because of a difference in the level of threat we now face? Who makes that determination? Should we condemn Fleet Admiral Ernest King (who made this decision) as a war criminal or honor him as a patriot?

http://opiniojuris.org/2007/09/10/a-world-war-violation-of-the-geneva-convention/

15 Responses

  1. John: Can you please provide further information on the incident? I’ve tried to search it on Westlaw and Google, to no avail. Did FDR concede that it was a breach of treaty? If so, was there a legal justification offered, even if only internal to the executive branch?

    Thanks,

    Marty

  2. Never mind — found it here:


    In general, the U-505 captives were treated very well at Camp Ruston. However, they were isolated from other prisoners, and the U.S. Navy confiscated all letters they attempted to send out. This treatment did not comply with the Third Geneva Convention (1929), which stated that POWs must be able to inform their next of kin and the International Red Cross of their capture. Because it was so important to keep the U-505 capture a secret, Admiral Ernest J. King, Chief of Naval Operations and Commander in Chief of the U.S. Fleet, authorized and directed these special conditions. By August 1944, the German Navy had informed the relatives of the U-505 crew that the men must be considered dead, as they were long overdue.

    Anyone have any further information on King’s rationale?

  3. Prof. McGinnis,

    With all due respect, not all provisions of the 1929 Geneva Convention or the 1949 Third Geneva Convention on PoWs are the same.

    Only GRAVE, not ALL, breaches of the Convention are considered to be war crimes. According to Art. 130 of GCIII, these grave breaches are ‘wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, compelling a prisoner of war to serve in the forces of the hostile Power, or wilfully depriving a prisoner of war of the rights of fair and regular trial prescribed in this Convention’

    Therefore, failing to inform the opposing Power of the capture of PoWs would have been a breach of the 1929 Convention, but it would NOT have been a war crime. Implicitly drawing an analogy to torture for the purpose of interrogation hardly seems appropriate.

  4. Marko is correct. However, there is still a danger that “disappearing” PoWs lends itself to the commission of grave breaches, such as torture. The Inter-Am. Ct. H.R. has opined that rights to habeas or amparo cannot be derogated during national emergencies if they are essential for protecting non-derogable rights, such as the right to humane treatment. However, denying someone the right to exercise their right to habeas or amparo still does not constitute a grave breach or Common Article III violation.

    Francisco Forrest Martin

  5. Rather than analogizing the German submarine scenario to “unapproved interrogation techniques”, I think the better analogy to the present is prolonged detention without access to anyone in the outside world, something akin to the secret prisons that we are calling “black sites”.

    Roger Alford

  6. I would think the Dachau Massacre would also classify… heck, Wikipedia has an list of alleged crimes:

    Wikipedia Link

    However, Mr Milanovic has a point… it’d be a lot harder trying them under the 1929 convention than the later one.

  7. I think this comment thread is not quite addressing John’s point. To be sure, he should not have written that the alleged U-505 incident was of “even greater consequence than the humiliation of a few unapproved interrogation techniques.” (Humiliation is the least of it, John.) But as I understood it, his post was intended to probe at the question of whether and under what circumstances it is permissible (under constitutional ratther than international law, right, John?) for the Executive in wartime to breach a treaty. I don’t know of any cases in which the U.S. has openly breached a treaty in wartime, let alone one in which it has claimed a legal right to do so (something not even John Yoo was willing to argue!). Therefore I’m very interested in the backstory of the U-505 detention, if anyone has further info.

  8. This case study demonstrates a more fundamental problem – it is the argument that if one breach is legitimate then another one is equally legitimate. It also is repugnant because it attempts to belittle the idea that is essential in the current debate which is that the US at high-levels organized torture and cruel inhuman and degrading treatment.

    In addition, it is not certain that King providing information about the soldiers to the ICRC would have been such a compromising act. Maybe leaks out of the ICRC were very frequent at that time and that was the concern. However, the ICRC experience at that time (based on discussion of their work with the Nazis about the death camps) suggests that they really took their obligation seriously and did not leak. That was one of the problems with the way they acted – according to a discussion we had at the ASIL meeting last March on precisely this type of hypothetical.

    So, I guess the question is whether the not informing the ICRC was an overreaction. According to the rules of war, we were permitted to hold them until the end of hostilities but should have informed the ICRC. That breach and the other breaches as to the mail etc. occurred. Without any further information, I can not say whether they rose to the level of the kinds of grave breaches described in other posts. Apparently they were treated well.

    If they were kept separate but were not kept in isolation from each other I am not sure that amounts to the kind of prolonged secret incommunicado detention that is a violation today. Another question is whether that isolation was considered illegal at that time.

    It is of course true that there were some allied war crimes. This does not mean that the rule of law should be ignored – it just shows how hard it is to be willing to hold oneself to the standard. Maybe that is why citizens need to help their leaders get there.

    Best,

    Ben

  9. On the wikipedia link please note that at the top it says


    The neutrality of this article is disputed.

    Please see the discussion on the talk page.

    Please do not remove this message until the dispute is resolved.

  10. I guess that one of the main differences in the argument made above is that those “unapproved interrogation techniques” are very unreliable, while the disappearence of the sub crew was pretty reliable. However, that was not the only possibility: they could have bargained with the crew for them to say that the sub was sunk, and that the enigma machine disappeared with it. And that is just one possibility.

    I think it is fair to compare oranges with oranges and apples with apples: is the disappearence or the crew then and the disappearence (i.e. “extraordinary rendition”) now acceptable? Not to me

    And, is the torture (i.e. “unapproved interrogation techniques”)now, and the torture then (and I know it happened because my dad was an interrogator in WWII and in the post war) acceptable? Once again the answer is no. There is a more reliable and humane way of doing things.

  11. I don’t mean to introduce anything from Wikipedia as evidence per se, but merely as a list of possible contentions on the subject.

    I would think the question of the non-notification of the ICRC being a grave breach or not is relatively difficult. Does the particular job of the prisoners enter into it? Submariners often vanished without a trace, if their vehicle was lost due to combat action or mechanical failure.

    Does the likelihood of their absence being interpreted as death weigh into the matter? It would be a little harder to believe that 500 infantrymen on the front lines had disappeared without a trace.

    Relatives of a disappeared infantryman could reasonably hope he was captured or disoriented. A missing sub almost uniformly indicated the death of all onboard.

  12. On the background of the U-505 story, it might also be interesting to see whether Admiral King may have followed the example of the Royal Navy, which of course had captured Enigma machines and codebooks (the two are, apparently, not the same) before, beginning in 1941 (the latter link reveals only that 32 of the crew of U-110 were captured, but gives no details).

    On the substance of the post, I fail to see more than a political-historical point in it. There was a violation of international law, and the simple fact that the breach served a useful purpose does not seem to me to be, without more, any form of rationalisation. If it were, we might just as well do away with all law.

    I also see no constitutional argument, over and above the simple utilitarian view that the violation was useful. Is the argument that the President’s Commander-in-Chief power extends to just about anything judged beneficial to national security, and that the Constitution in this respect trumped (domestically, hierarchically inferior) international law? I should hope not, and I think it isn’t.

    I would not celebrate Admiral King as a patriot, but would not condemn him either. There is a middle ground, even in the assessment of very senior military men.

  13. First, let’s at least get the law right in this discussion.

    (1) The relevant treaty is the “Convention relative to the Treatment of Prisoners of War, done at Geneva July 27, 1929. This was the first international convention specifically focused on POWs; previously their treatment had been covered in bilateral accords and in Chapter II of the Hague land warfare regulations. There were only two effective Geneva accords at this date, one on the sick and wounded and the one on POWs.

    (2) The treaty requires notification of capture “as soon as possible” and provision of the postal address to which the prisoner’s family can write them. It also calls for prisoners to be able to send a postcard to their family confirming their capture and state of health within a week after their arrival at a POW camp (Art. 36). At the same time, however, the convention specifically allows censoring of the prisoners’ outgoing correspondence (see, e.g., art. 40) AND implicitly allows “prohibition of correspondence . . . for military or political reasons” but only “of a temporary character and . . . for as brief a time as possible.”

    (3) There is nothing in the 1929 Convention or previous law of war treaties that establishes violation of their provisions as war crimes generating individual criminal liability. So until the Nuremberg judgment, which held that the 1907 Hague land warfare regulations had assumed the status of customary international law and gave rise to penal liability, this was very much an open question.

    (4) This is not true of the 1949 Geneva Conventions, for which ANY violation can give rise to individual criminal liability. Those violations defined in the treaties (see, e.g., Art. 130 of GIII) as grave breaches are required to be subject to universal jurisdiction, but nations are further required to “take measures necessary for the suppression of all acts contrary to the present Convention other than the grave breaches . . .” so it is incorrect to hold that only grave breaches constitute crimes.

    Second, a careful reading of the Convention articles discussed above highlights that King did not face the simplistic dilemma discussed by the post and commentators above. True, if the Germans believed that U-505 had been sunk with the loss of all hands, as many submarines lost by both sides during the war were, they would have absolutely no reason to suspect that Enigma had been compromised. But revealing the capture of the crew as required by the Convention did not require revealing the capture of Enigma — a number of U-boats were sunk under conditions that allowed the vast majority of the crew to escape and be rescued, and there is no particular reason, given the lawful authority to censure correspondence, that the capture of the boat and cryptographic materials could not have been concealed even while acknowledging capture of the crew. Indeed, some previous histories I’ve read of the U-505 capture indicated that the Navy took special precautions while the German crew was still at sea to ensure that they did not know that their sub had been saved. So even censoring the correspondence might have been unnecessary to preserve this info, but in any event it definitely provided a viable secondary means of defense.

    The idea that military necessity conflicts with the application of the law of war in practice (it is never allowed as a matter of law) is almost always wrong. The fact is that the law of war was developed in large part by warriors, and faithful adherance generally increases rather than impedes the likelihood of achieving victory.

  14. Thanks, Dave. But did the U.S. breach the 1929 treaty, or not? And, if so, did it provide any legal justification?

  15. Marty – Since you (quite fairly) ask for a conclusion, I think on balance that the U.S. did breach the 1929 treaty. While King’s defenders might cite the “as soon as possible” caveat on the notification requirement and the implied authority to restrict communications for military or political reasons as offering some support for his decision, the requirement that POWs be allowed to communicate within a week after arrival at a formal detention camp seems non-derogable. Given that submarines were typically not declared lost until all possible hope of their return was lost, the delay in reporting the capture so long that the German families believed their sailors was dead seems contrary to both letter and spirit of the accord.

    Less clear is whether such a breach constituted a war crime for which their could have been individual penal liability or was simply a matter to be addressed by the parties concerned, through the auspices of the protecting power or ICRC, or potentially even through such measures as reprisals. As the law was understood at the time I think there is a much stronger case for national rather than individual accountability, but if that’s so then many of the Axis war crimes prosecutions after the war were logically “victor’s justice.”

Trackbacks and Pingbacks

  1. There are no trackbacks or pingbacks associated with this post at this time.