Internment Background
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INTERNED OR IMPRISONED?: THE SUCCESSES AND FAILURES OF INTERNATIONAL LAW IN THE TREATMENT OF AMERICAN INTERNEES IN SWITZERLAND, 1943-45 Dwight S. Mears A thesis submitted to the faculty of the University of North Carolina at Chapel Hill in partial fulfillment of the requirements for the degree of Doctor of Philosophy in the Department of History Chapel Hill 2012 Approved By: Wayne E. Lee Richard H. Kohn Joseph T. Glatthaar Konrad H. Jarausch Karen Hagemann ©2012 Dwight S. Mears ALL RIGHTS RESERVED ii ABSTRACT Dwight S. Mears: Interned or Imprisoned?: The Successes and Failures of International Law in the Treatment of American Internees in Switzerland, 1943-45 (Under the direction of Wayne E. Lee) During World War II, over 100,000 soldiers of various nationalities sought refuge in neutral Switzerland, including over 1,500 American airmen from damaged U.S. bombers. As a result of the U.S. violations of Swiss neutrality and other external factors, the Swiss government was unwilling to apply the 1929 Geneva Convention prisoner of war protections to the interned U.S. airmen when they were punished for attempting escape. The politicization of internment procedures resulted in a diplomatic stalemate in which the ambivalence of Swiss officials prolonged mistreatment of U.S. airmen in apparent repudiation of emerging customary international law. The stalemate produced a range of responses, revealing that some Swiss officials and citizens disagreed with their government’s internment policies and sought to apply prisoner of war protections to internees. Answering the question of how international law functioned in the scenario of Swiss internment demonstrates the cultural importance of Swiss adherence to humanitarian traditions, the process by which governments and individuals seek to influence aberrant state practice, and how many hidden influences combine to enforce customary rules. iii ACKNOWLEDGEMENTS My original inspiration for this research is over a decade old, when I was a student at the U.S. Military Academy at West Point. While conducting genealogical research I learned that my grandfather—a U.S. Army Air Force bomber pilot—was shot down by German fighters in March 1944 and managed to land his badly damaged aircraft near Zurich, Switzerland, where he was interned until January 1945. At the time of this research I was also enrolled in a course at West Point on the law of armed conflict, and I noticed that the Swiss internment policies did not conform to those later codified in the 1949 revision to the Geneva Conventions. This confluence of law and history sparked my interest and led me to return to the subject again in graduate school. I later submitted some of my research to the U.S. Air Force and the Office of the Secretary of Defense in an attempt to gain official recognition for those airmen interned in Switzerland. I owe a debt of thanks to many. My principal advisor, Prof. Wayne Lee, adeptly channeled my interest into a methodology that is far from esoteric, and provided much needed guidance and feedback along the way. My wife, Christy Kubit, tolerated many hours of translating and several inconvenient research trips. She was a constant source of support, particularly her proofreading assistance. Several historians and attorneys assisted me with sources and advice, including Cathryn Prince, Dr. Roy Thomas, Dr. Gary Solis, Prof. Mark Weisburd, Peter Kamber, and Neville Wylie. Several archivists provided generous assistance, particularly those at the Federal Archives in Bern, iv Switzerland. My foreign archive research was made possible by the Omar N. Bradley Historical Research Fellowship. v TABLE OF CONTENTS List of Abbreviations………………………………………………………………..……vi Chapter I. Introduction………………………………………………………………..1 II. Historical Context of Internment…………………. …………………….14 III. American Internees………………………………………………………51 IV. Escaping Americans & Punishment Camps…………………...………...78 V. U.S. Internees on Trial……………………………………………….....124 VI. Swiss Civilians on Trial………………………………………………...146 VII. The Debate over International Law…………………………………….165 VIII. Inspections and Reactions to Diplomatic Crisis….………………….....195 IX. The Web of Diplomacy in Switzerland……...…………………………219 X. Consequences and Codification of New Law……………………....…..263 XI. Conclusion……………………………………………………………...296 Appendix: Photographs......…………………………………………………………….308 Bibliography……………………………………………………………………………332 vi LIST OF ABBREVIATIONS AFHRA Air Force Historical Research Agency, Maxwell Air Force Base, AL FCIH Federal Commissariat for Internment and Hospitalization ICE Independent Commission of Experts ICRC International Committee of the Red Cross MACR Missing Air Crew Report NARA U.S. National Archives at College Park, College Park, MD NCO Noncommissioned Officer OSS Office of Strategic Services POW Prisoner of War SFA Swiss Federal Archives at Bern SIAA Swiss Internees Association Archives, Lakewood, NJ USAAF U.S. Army Air Force USN U.S. Navy VA U.S. Department of Veterans Affairs vii I. Introduction Many questionable government actions during international conflicts in the twentieth century underscore the difficulty of creating and enforcing rules for wartime conduct. Not only is the international law of armed conflict difficult to enforce, but the evolutionary nature of the law lags behind the infinite possibilities of combat, and loopholes in the law are often addressed only after they have been exploited. Warfare generates new permutations of combatants and technology that are not codified clearly under existing international law, producing rules of conduct that emerge as customary practice. The process of interpreting this gray area illustrates how governments behave in response to treaties, as well as how individuals and governments can take advantage of the inherent ambiguity of international law. The contestation over these rules also demonstrates that multiple factors influence the enforcement of this type of international law, ranging from treaty obligations to actors at the individual level. In World War II, over 1,500 American airmen were interned by neutral Switzerland, the vast majority being U.S. Army Air Force (USAAF) aircrews from damaged B-17 and B-24 bombers. As required by the Hague Convention of 1907, “a neutral Power which receives on its territory troops belonging to the belligerent armies shall intern them, as far as possible, at a distance from the theatre of war.”1 Many of 1 Art. 11, The 1907 Hague Convention (V) Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land (The Hague: October 18, 1907), available at: http://www.icrc.org/IHL.nsf/INTRO?OpenView (accessed October 18, 2011). these internees were treated well, but others who unsuccessfully attempted escape were punished well beyond the limits of emerging international law through imprisonment in punitive confinement camps. The presumptive standard for the treatment of internees were the carefully codified protections for Prisoners of War (POWs) contained in the 1929 Geneva Convention Relative to the Treatment of Prisoners of War. Unfortunately, that presumptive standard was not yet codified for internees, although many legal authorities at the time were making the argument that it was customary international law. Customary international law, which is as enforceable as treaty law, requires several elements. According to legal scholar Shabtai Rosenne, customary international law “consists of rules of law derived from the consistent conduct of States acting out of the belief that the law required them to act that way.”2 Thus, this type of law requires general state practice as well as opinio juris sive necessitates, or the belief that an act is a legal obligation.3 During World War II, many but not all states claimed that international law required treating internees the same as POWs. Since there was not yet a complete consensus on the guarantee of explicit POW protections for internees, the rule was “emerging” rather than fully reified customary international law. Switzerland was one state that refused to afford military internees the legal protections of POWs, and instead citied more precise written law. Exploring the diplomacy surrounding the internment of American airmen in Switzerland in 1944 reveals how the Swiss government negotiated emerging international 2 Shabtai Rosenne, Practice and Methods of International Law (New York: Oceana, 1984), 55. 3 Barry E. Carter, Phillip R. Trimble, and Allen S. Weiner, International Law (New York: NY, Aspen Publishers, 2007), 123-24. 2 law on prisoner treatment, methods used by individuals and governments to pressure the Swiss state into compliance, and the importance of humanitarian action for the Swiss culture. In a larger context, the case study also demonstrates the many ways in which humanitarian law is influenced beyond the diplomacy between nations and the adherence to firm treaty obligations. In some cases, compliance is first encouraged and enforced at the grassroots level before a rule is formally adopted by the state. The internment of American airmen in Switzerland during World War II began with a B-24 Liberator bomber nicknamed Death Dealer. A high-altitude heavy bomber with a crew of ten, four engines, and a bomb load of six tons, the B-24 was a critical part of the Allied strategic bombing campaign in Europe.4 Death Dealer was assigned to the 9th Air Force in North Africa, and was considered a lucky ship after surviving the infamous August 1, 1943 raid on the oil refinement facilities in Ploesti, Romania,