chapter 2 The Deserter and His or Her Home Country

The Chapter starts with an overview of the treatment that deserters have received in past military conflicts, as well as of the conciliatory measures that countries have taken regarding deserters following termination of an armed conflict by a peace treaty, in the form of a national amnesty or rehabilitation programmes. This overview is followed by an examination of contemporary international legal norms relevant to the relationship between a deserter and his or her home country, as well as of the rights and duties stipulated by inter- national law regarding the home country’s treatment of deserters from its national forces during an armed conflict.

A Desertion in Past Conflicts – A History of Severe Punishment and Reluctant Forgiveness i Punishment of Deserters Throughout the history of armed conflict the punishment of deserters has been known to be severe. Deserters were considered outlaws1 and, in some cases, ransoms were paid to anybody who captured and handed them over. Once caught, deserters faced either the death penalty or a long prison sen- tence, loss of citizenship2 and, in some cases, other cruel punishments, such as mutilation.3 In addition, deserters have been stigmatised not only as military criminals but also as cowards and traitors to their country. An example is the treatment of deserters by the Australian Imperial Force during World War i: their names were published in the newspapers at home, in order to bring shame on their entire family.4 During World War i, the Austro-Hungarian Army

1 Bodo Scheurig, Desertion und Deserteure, Frankfurter Hefte, Vol. 4, 1979, p. 39. 2 In the u.s., this punishment was declared to be in violation of the Eighth Amendment and thus unconstitutional by the u.s. Supreme Court in 1957, see: Trop v. Dulles, Secretary of State et. al., 356 u.s. 86. See below in this section under 3. 3 Franz Seidler, Fahnenflucht, pp. 27–31, with further examples of forms of punishment for deserters throughout history. 4 Unlike the British Army, Australia refused to inflict the death penalty on deserters during World War i, but the alarming increase in absences without leave and desertions led to the use of other penalties instead, such as publication of lists of offenders in Australian newspapers.

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The Deserter And His Or Her Home Country 25 faced particularly high rates of desertion. As early as 1914, in response, the Army High Command (Armeeoberkommando) ordered a number of ad-hoc measures to prevent soldiers from deserting, which included summary execu- tion for desertion, or for encouraging desertion.5 Many armies shared the general belief that, if it is to have a deterrent effect on soldiers, the punishment of deserters has to be extremely harsh and has to outweigh the risks that soldiers anyways face in a wartime theatre.6

1 German Deserters during World War ii The treatment of German deserters during World War ii is notorious for the merciless punishments handed out by the distorted military legal system of the Nazi regime.7 Early on in the regime, military jurists emphasised the politi- cal nature of desertion. The deserting soldier was seen as breaking his alle- giance to the Führer and soldiers accused of desertion were denounced as vermin of the military force.8 In April 1940, the military criminal code (Militärstrafgesetzbuch “MStGB”) was revised and provisions regarding the punishment of deserters were tight- ened.9 While ordinary desertion remained punishable by between 6 months’ and 15 years’ imprisonment according to § 70(i) MStGB, the possibility of miti- gated punishment was removed.10 Aggravated desertions – in particular, deser- tions during wartime – were to be punished with jail sentences for life, or death according to § 70(ii) MStGB. With regard to the application of this provision, Hitler issued a special directive. In it, he requested broadly that the death penalty be handed down in all cases in which the soldier acted out of personal fear, on the basis that this was necessary to maintain military discipline (Manneszucht), as well as in cases of repeated desertion, group desertion, or

See: Australian War Memorial Encyclopedia, Desertion and the Death Penalty, available at: http://www.awm.gov.au/encyclopedia/desertion.htm. 5 Alon Rachamimov, pows and the Great War, p. 32. 6 Christine Van Den Wyngaert, Military Offences, The Military Law and the Law of War Review, No. 27, Vol. 1, 1988, p. 93. 7 Chris Madsen, Victims of Circumstance: The Execution of German Deserters by Surrendered German Troops Under Canadian Control in Amsterdam, May 1945, Canadian Military History, Vol. 2, No. 1, 1993, p. 93; on the practice of the military courts of the Wehrmacht in general, see: Manfred Messerschmidt, Wehrmachstjustiz 1933–1945, pp. 173–199. 8 Manfred Messerschmidt, Die Wehrmachtsjustiz 1933–1945, p. 173. 9 § 70 MStGB of 16 July 1935 (RGBl. i p. 1021) and 10 October 1940 (RGBl. i p. 1347). 10 Oliver C. Prinz, Der Einfluss von Heeresverfassung und Soldatenbild auf die Entwicklung des Militärstrafrechts, p. 235.