JohnB wrote:
The crippled bomber is still seen as a fair target... however as we have seen like in A Higher Call, pilots may not want to administer the coup de grâce (although their superiors and civilian countrymen might disagree).
Retreating aircraft would be legitimate targets, surrendering aircraft would not. There's an argument to be made that
maybe, Ye Old Pub had some sort of protection when Stigler first arrived on scene. However, after Brown was given the option to surrender and refused, then any
possible protection would have been dropped. (Full disclosure, I've never read the book and based on a quick review of the
relevant Wikipedia article. It's possible that Brown did not understand the commands. However, for the sake of argument, let's presume he did.) The relevant term here is
hors de combat, which
Article 41 of the 1949 Geneva Convention states:
Geneva Convention wrote:
2. A person is 'hors de combat' if:
- (a) he is in the power of an adverse Party;
- (b) he clearly expresses an intention to surrender; or
- (c) he has been rendered unconscious or is otherwise incapacitated by wounds or sickness, and therefore is incapable of defending himself;
provided that in any of these cases he abstains from any hostile act and does not attempt to escape.
The B-17 would not have been hors de combat, as while it was "incapable of defending [itself]", it was still attempting to escape. (While this convention was enacted in 1949, IHL laws often codify existing unwritten conventions. So while this reading would not have been in place during the incident, it is still a reasonable application.) Where a war crime
would have occurred was if Brown had accepted Stigler's offer to surrender and then Stigler had shot the B-17 down. Basically, it comes down to whether your opponent has a choice. If the enemy has freedom of action, then they are a legitimate target. However, once they offer surrender and you reject it, then it becomes a war crime.
The question I always thought would be an interesting one to try is whether or not it is legal to kill uninjured soldiers escaping a ship carrying troops. The argument being an analogy with the laws on shooting parachutists. It is illegal to shoot a
crewperson abandoning an aircraft. However, it is legal to shoot
paratroopers. Therefore, it would seem illegal to shoot the
crew of the troop transport, but not the
soldiers. While I'm not sure if this exact comparison was cited, this is more or less the argument that Mush Morton used to defend himself after doing just that during the third patrol of the USS Wahoo, suggesting that they would have been a threat had they made it to land. In any event, the incident was sort of swept under the rug (although, there are claims it was the reason he was never awarded the Medal of Honor), so it was never tried in a court of law. If I had to guess, the counter argument would be that the troops were hors de combat simply by virtue of being in the lifeboats. Again, while not formally adjudicated, a form of this rebuttal was brought up in discussions of the issue: namely that the troops had lost all of their equipment and were no longer combat effective.
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