The United States and the Denial of Prisoner of War (POW) Status at the End of the Second World War1

Aufsatz

Richard D. Wiggers

In his study entitled Nazi Prisoners of War in America, historian Arnold Krammer relates how the U. S. Government followed the 1929 Geneva Convention to the letter during World War Π in its treatment of nearly 400,000 captured German military personnel imprisoned in POW camps across the United States. According to Krammer the U. S. government »was almost obsessed with adherence to a liberal interpretation of the Geneva Convention, often far in excess of any agreed-upon requirements«.2 Even during the closing months of the war, the United States government gave every indication that it intended to continue to abide fully by the 1929 Geneva Convention in its treatment of captured enemy military personnel. As of January 1945,100 million leaflets to that effect had been dropped behind the shrinking German front lines, and by April 1945 large numbers of »safe conduct« passes making similar promises and signed by Supreme Headquarters, Allied Expeditionary Force (SHAEF) commander Dwight D. Eisenhower had also been dropped behind German lines by the US Army to induce surrenders of enemy military personnel.3 The same apparently unequivocal stance in support of compliance with the 1929 Geneva Convention was taken domestically by US government officials. During hearings which were held in Washington in April 1945 before a Special Committee of the US House of Representatives, officials from both the State and the War Departments testified that unless Congress decided otherwise, the 1929 Geneva Convention and strict adherence to its provisions remained the »law of the land« and would not be contravened by the United States.4 The following month the Theater Provost Marshal of the US Army, one of the officials most directly responsible for the custody and treatment of captured enemy military personnel, wrote an article in The American Mercury in which he assured the American public that »Today we of America are leading the world in our record of abiding by international law. Certainly if we hope to make lawbreaking unpopular, we must ourselves appear in the court of world opinion with clean hands. If we aren't going to abide by

1 The author wishes to express his deep gratitude to his mentor and friend Professor Brian Villa. Without Brian's advice and assistance this article would never have been conceived or written. The author would also like to express his thanks to Professors Robert Keyserlingk and Günter Bischof for their guidance and encouragement in this project. — Portions of this article were originally presented on 20 June 1992 at the Eighteenth Annual Conference of the Society of Historians of American Foreign Relations in Hyde Park, New York. 2 London: 1991, p. 153. 3 BG Robert A. McClure, Psychological Warfare Division, SHAEF to the Chief of Staff, National Archives, Washington (NA), Record Group (RG) 59, General Records of the Department of State, Decimal File 1945-49, Box 3861, Document 740.00119 EW/2—1245, Colonel W.C. Chanler to Philip Jessup, 01 February 1945, FDR Library, Hyde Park, Fahy Papers, Box 65, File »Legal Consequences of Unconditional Surrender«, and Report of Proceedings and hearings held before the Special Committee of the Committee on Military Affairs, »Treatment of Prisoners of War«, 30 April 1945, NA, RG 59, Decimal File 1945-49, Box 3553, Document 740.00114 EW/4-3045, pp. 519-520. 4 Report of Proceedings, »Treatment of Prisoners of War« (see fn. 3), pp. 512—516 and 565—579.

Militärgeschichtliche Mitteilungen 52(1993), S. 91—104 © Militärgeschichtliches Forschungsamt, Freiburg i.Br. 92 MGM 52 (1993) Richard D. Wiggers international laws, why deceive ourselves by having them [...] We believe that abiding by the Geneva Convention is the best thing for us now, as well as in the future.«5 Challenged by Canadian author James Bacque's 1989 book Other Losses: An Investiga- tion Into the Mass Deaths of German Prisoners at the Hands of the French and Americans After World War II,6 as well as its later American and German editions, academics have now returned to the question of post-World War II Allied treatment of captured German military personnel. In Other Losses Bacque accused the Allies, and U. S. officials in par- ticular, of ruthlessly planning to violate the 1929 Geneva Convention in order to carry out a massive and illegal programme of long-term postwar employment of large numbers of German soldiers, and the death by starvation of a million of them. Originally designated POWs before the end of the war, Bacque claims that these and other enemy troops captured after war's end were secretly switched to a new category not covered by the Geneva Convention, namely that of Disarmed Enemy Forces or Disarmed Enemy Force (DEF)s.7 In Bacque's view, it was SHAEF commander Dwight D. Eisenhower who personally devis- ed, drafted and signed the March 1945 order which »created the lethal DEF status« for captured German military personnel.8 This change of status supposedly allowed the Allies to ignore the stipulations of international law and to deal with the millions of German soldiers in their custody as they saw fit, including engineering their mistreatment and mass killing. The fact that several thousand captured enemy personnel, both POWs'and DEFs, died in Allied camps after the war from malnutrition and exposure has not been a secret, but certainly not one million died in the camps, and certainly not as the result of a concerted Allied or SHAEF plan. These points are discussed in more detail in a recently published collection of articles entitled Eisenhower and the German POWs: Facts Against Falsehood,9 This paper, meanwhile, will focus on an analysis of the denial of POW status, and the transfers from POW to DEF categories. It will attempt to show that indeed the Allies at the end of the war, like the Germans in some cases during the war, did withdraw captured enemy personnel from the protection of the 1929 Geneva Convention, and will in- dicate reasons that this was done. It will also conclude that no satisfactory evidence exists at this time to link this change of status to any plan for a programme of mass killing as alleged by Bacque. The question of the status of captured German military personnel is indeed an impor- tant one. In order for a soldier to benefit from the protection of the rules of international humanitarian law, he must first be recognized as a »lawful belligerent« and be granted the status of a Prisoner of War upon capture. Only by gaining and maintaining POW status can an individual combatant claim Geneva Convention protection while in the custody of the enemy. In fact, it can be argued that the 1907 Hague Rules of Land Warfare and the 1929 Geneva Convention were a victory for international humanitarian law less because of the specific contents of the articles regarding the conditions to be provided

5 Major General Archer L. Lerch, »The Army Reports on Prisoners of War«, The American Mer- cury, May 1945, p. 3. 6 Toronto: 1989. 7 There are numerous other variations of this term which appear in war-time and post-war documents, but which have essentially the same meaning. Among the most common are »Surrendered Enemy Personnel«, »capitulated troops«, and »disarmed Germans«. 8 Bacque, Other Losses, (see fn. 6), pp. xii, 30, 164. 9 Günter Bischof and Stephen E. Ambrose (eds), Baton Rouge and London: 1992. The United States and the Denial of Prisoner of War 93 for captive military personnel than for the recognition of the POW status at all. These laws acknowledged that once disarmed and taken into custody a soldier of an enemy state was at the mercy of the detaining state which captured him, and deserved henceforth the protection of an international regime of regulations and standards.10 The detainee had in effect now become a third party to the conflict, protected as a matter of international public interest by the terms of the Convention until the conclusion of a peace treaty, or his repatriation to and/or the annexation of his state of origin. Unfortunately, the denial of POW status and Geneva Convention standards of treatment to captured enemy military personnel was hardly a novel occurence during World War II. The Germans did not accord them to millions of Red Army personnel which it captured during the course of the conflict on the eastern front, leading to fatal results for the majority.11 After the German annexation of Poland that country's military personnel were transferred to civilian labour status, and only Polish military officers continued to be accorded POW status.12 Yugoslavian military personnel were also denied POW status and were treated as civilian labourers. German officials argued in both the Polish and Yugoslav cases that the state of origin of these troops had ceased to exist and that Germany was now exercising sovereignty.13 During 1943 the Germans also decided to designate more than 500,000 Italian soldiers disarmed after that state's capitulation to the Allies as »military internees« rather than as POWs, arguing that the latter were not enemy personnel but subjects of the neo-Fascist government to which the Germans remained allied.14 In all of these cases the German authorities unilaterally denied or removed POW status and Geneva Convention guarantees of treatment and protection from captured enemy military personnel by employing various legalistic rationales. The denial of POW status by the Germans in turn led to abuses; poor diet, labour and living conditions, and even deaths on a massive scale. Although granting them POW status may not have been a guarantee that those military personnel captured and interned by the Germans during World War II would have been treated in accordance with the 1929 Geneva Conventions, it might at least have acted as a limitation against the arbitrary treatment to which they were eventually exposed. The Allies were also not immune to the practice of denying POW status to enemy military personnel in their custody. U.S. officials admitted in 1947 that some 1.6 million German military personnel captured during the latter stages of the war had not been considered »soldiers« or registered as POWs, and were therefore released rapidly and without discharge papers.15 Among these men were the elderly and under-aged Germans who were recruit-

10 »L'oeuvre du Comite international pendant la seconde guerre mondiale«, Revue internationale de la Croix-Rouge, vol. 78, August 1947, p. 640. 11 Detlev F. Vagts, »International Law in the Third Reich«, American Journal of International Law, vol. 84, 1990, pp. 698-99. 12 »L'oeuvre du Comite international«, March 1947, p. 219. 13 Rene-Jean Wilhelm, Can the Status of Prisoners of War be AlteredGeneva: 1953, p. 10. 14 Gradimir Djurovic, The Central Tracing Agency of the International Committee of the Red Cross, Geneva: 1986, p. 159, Rapport du Comite international de la Croix-Rouge sur son activite pendant la seconde guerre mondiale (ler septembre 1939—30 juin 1947), vol. 1, Activites de Caractere general, Geneva: May 1948, pp. 558—559, and »L'oeuvre du Comite international«, March 1947, p. 220. See also Gerhard Schreiber, Die italienischen Militärinternierten im deutschen Machtbereich 1943 bis 1945. Verraten — Verachtet — Vergessen, München: 1990 (Italian: Roma: 1992). 15 Kurt W. Böhme, Die deutschen Kriegsgefangenen in amerikanischer Hand: Europa, Band X/2, Mün- chen: 1973, pp. 11, 70. 94 MGM 52 (1993) Richard D. Wiggers ed into local »Volkssturm« and other militia units during the latter stages of the war, and who the Allies did not feel posed a security threat after they had been captured and disarmed.16 As well, in the wake of the German capitulation of 8 May 1945 both British Prime Minister Winston Churchill and SHAEF Commander Dwight D. Eisenhower issued public warnings that German troops who continued to bear arms and resist capture after that date would »deprive themselves of the protection of the laws of war« and would lose the status of »soldiers«. Most of the violations of the Military Capitulation Act occurred on the Czechoslovakian front where German troops continued to fight their way westward in the hope of avoiding capture by the Soviets. An estimated 135,000 German troops violated the »stay put« orders in this manner and passed into U. S. custody. They were denied POW status, impounded in the forward areas and subsequently transferred to the custody of the Red Army.17 This was done despite the fact that five days before it was issued a legal opinion provided to SHAEF by the International Law Division of the Judge Advocate General concluded that a unilateral declaration such as this would not necesarily be valid under international law.18 Another example of denied status concerned Axis prisoners of war in Allied custody who were accused of having committed violations of the laws of war or belonging to criminal organizations. As early as August 1944 the Joint Chiefs of Staff (JCS) began con- sidering the fate of suspected enemy war criminals, but concluded that they should not be segregated from the other POWs »prior to the cessation of active hostilities«.19 As soon as the war had ended, however, and the fear of retaliation against their own POWs had passed, the Allies intended to release those Axis military personnel »charged with the commission of war crimes or other offences« from POW status and Geneva Convention protection.20 In this manner tens of thousands of suspected German war criminals or members of alleged criminal organizations were segregated from their fellow POWs after

16 In the August 1945 »Monthly Report of the Military Governor, U. S. Zone«, NA, RG 94, Adju- tant General's Office, Administrative Services Division, Foreign Area Reports, Box 1175, the majority of 663,576 »other losses« are noted to be members of the »Volkssturm« released without discharge papers. When added to one million DEFs discharged by June 1945 (see below), also probably without processing, this would total approximately 1.6 million. 17 A.J. Barker, Behind Barbed Wire, London: 1974, pp. 25—26, Böhme, Die deutschen Kriegsgefangenen (see fn. 15), p. 65, and Alfred D. Chandler and Louis Galambros (eds), The Papers of Dwight David Eisenhower: Occupation, 1945, Baltimore: 1978. See also Forrest C. Pogue, The European Theater of Operations: The Supreme Command, Washington: 1954, p. 505, and Royce L. Thompson, Military Surrenders in the European Theater of Operations: World War II, Washington: 1955, p. 84. 18 Colonel Charles Fairman, Chief, International Law Division, Judge Advocate General's Departe- ment (JAGD), to Colonel R. C. Brooks, G-l Section, SHAEF, 3 May 1945 and attached memorandum to Colonel Archibald King, Chief, International Law Division, JAGD, »Status of Resisting German Armed Forces after Y-Ε Day«, 19 April 1945, NA, RG 331, Allied Operational and Oc- cupation HQ, WWII, SHAEF G-l, Box 30, File 384.1. 19 JCS 1023, »Obligations of Theater Commanders in Relation to War Crimes«, 26 August 1944, NA Microfilm Collection, JCS, Part I, Strategic Issues, Roll 12. 20 JCS 1102, »United States Draft Directive to Allied Commander-in-Chief on >Disposal of Ger- man Armed Forces««, 13 October 1944, ibid., and JCS 1102/2, ibid., 5 December 1944, NA, RG 43, Records of International Conferences, Commissions, etc., Mosely Papers, Box 6, File 134.17. For a discussion of the legal aspects of the removal of POW status for suspected war criminals see Dr. George M. Wunderlich to Assistant Secretary of War John J. McCloy, »Status of German War Criminals as Allied Prisoners of War«, 13 June 1945, NA, RG 107, Office of the Secretary of War, McCloy Papers, Box 36, File 383.6. The United States and the Denial of Prisoner of War 95 the war, and were released from their POW status and Wehrmacht military service and transferred to civilian internment facilities to await investigation and trial.21 Yet another group of captured German military personnel from whom the Allied governments decided to remove their POW status and protection were several hundred thousand nationals from neutral or Allied states who had served in German uniform during the Second World War. The British Foreign Office had early taken the position that an Allied national captured while serving in enemy uniform could not claim POW status and Geneva Convention protection, but could be delivered »unconditionally« to his own state. The British authorities thus began to deny POW status to and forcibly to repatriate Soviet nationals captured while serving in German uniform as early as August 1944.22 The U. S. Theater Provost Marshal, on the other hand, argued that only the prisoner and the nation in whose armed forces he was serving could waive his POW status and the provisions of the Geneva Convention.23 They took the position that when captured by the Allied armies, the latter were entitled, under the strict letter of the Geneva Convention, to protection and fair treatment as enemy POWs. Concerned about the possibility of retaliation against U. S. POWs, the American government explained to the Soviets, who were press- ing for the repatriation of their own nationals who had been captured while serving in German uniform, that »no legal excuse must be given to the Germans for complaining that the terms of the Geneva Convention have been violated, as they have shown that they will not hesitate to take advantage of any alleged break of the Convention to inflict reprisals upon Allied prisoners of war in their hands«. Allied and Soviet nationals captured while serving in German uniform by U. S. troops would therefore be recognized as POWs, at least »initially«, and »treated in all respects in accordance with the Geneva Convention«.24 It appeared, however, that in this case as well U.S. authorities contemplated a reversal of official policy as soon as Germany had capitulated and the fear of retaliation against their own POWs had passed. A draft directive compiled as early as the summer of 1944 recommended that at the end of the war all non-German personnel incorporated in the German armed forces »will remain in or be returned to their countries of origin, or other-

21 »Organizations indicted before the International Military Tribunal at Nuremberg«, 25 February 1946, Public Records Office, London, England (PRO), War Office (WO) 32/12208, »Repatria- tion of senior officers, automatic arrest categories and security suspects among German P/W«, 15 April 1947, PRO, WO 32/12179, U. S. Army, Office of the Chief of Military History (OCMH), Disarmament and Disbandment of the German Armed Forces, Frankfurt: 1947, Section 28, and Wilhelm, Can the Status (see fn. 13), pp. 12—14. 22 US Political Adviser, Supreme Allied Commander, Mediterrean (SACMED), to the Secretary of State, 07 October 1944, Foreign Relations of the United States (FRUS), Diplomatic Papers, 1944, vol. IV, p. 1257, and Martin Kitchen, British Policy Towards the Soviet Union During the Second World War, New York: 1986, p. 193. For other legal opinions on this issue, see also William E. S. Flory, Prisoners of War: A Study in the Development of International Law, Washington: 1942, p. 29, 142, Wilhelm, Can the Status (see fn. 13), pp. 31—32, Jan P. Charmatz and Harold M. Witt, »Repatriation of Prisoners of War and the 1949 Geneva Convention«, The Yale Law Journal, vol. 62 (1952—1953), p. 401, fn. 46, and Allan Rosas, The Legal Status of Prisoners of War, Helsinki: 1976, p. 383. 23 MG Milton A. Reckord, European Theater of Operations (ETO) to General Barker, 25 January 1945, NA, RG 331, Box 28, File 383.6/8. 24 Brigadier General (BG) T.J. Davis, SHAEF memorandum, »Handling Allied Nationals Who Have Collaborated or Served with the Enemy«, 2 December 1944, NA, RG 331, SHAEF G-l, Box 24, File 383.4. 96 MGM 52 (1993) Richard D. Wiggers wise disposed of«.25 This policy was expanded upon in the Yalta repatriation accords of 11 February 1945. Allied policy subsequently called for Soviet nationals who were captured while serving in German uniform to be segregated from other enemy POWs until the threat of German retaliation had ended, at which time they would be repatriated to the Soviet Union.26 In June 1945 SHAEF Commander Dwight D. Eisenhower requested and received JCS approval for the repatriation of the large numbers of Soviet nationals then in SHAEF POW camps who had been captured while serving in German uniform.27 The Department of State Legal Adviser agreed that the Geneva Convention should not be mentioned in regard to the proposed plan to repatriate Soviet nationals who had fought during the war in German uniform and who were now held in U. S. POW camps now that it had been found »politically expedient to amend this policy«. The Legal Adviser did note, however, that the Soviet nationals interned in the United States were first being sent to Germany for discharge from their POW status in an attempt to bring their return to the Soviet Union within the letter of the Geneva Convention.28 As regards other Allied nationals captured while serving in German uniform, within days of the unconditional surrender of the German armed forces, on 12 May 1945, Acting Secretary of State Joseph Grew recommended that »it would be advisable to transfer to the custody of the authorities of the other Allied governments all persons believed to be of their respective nationalities who were captured by the American armed forces while serving in German military formations in German uniform who insist upon being treated as German POWs.«29 During June 1945 French, Belgian, Dutch and Luxemburg nationals were released from POW and disarmed German force status and handed over to their respective governments. Two months later, in response to the »urgent necessity« to reduce the numbers of POWs in Allied hands, permission was granted by the Combined Chiefs of Staff for the release to their respective governments of all nationals of the United Na- tions.30 A 1946 report compiled by the Theater Judge Advocate of European Theater of Operations, U. S. Army (ETOUSA) and United States Forces European Theater (USFET) claimed that no German prisoners of war who were found to be Allied nationals were transferred to their state of origin »unless they agreed to the transfer and waived the rights afforded them by the Geneva Convention,«31 but this was clearly not true in practice.

25 JCS Memorandum for Information No. 274, »Draft Directive to Allied Commanders in Chief on Disposal of German Armed Forces«, 21 July 1944, NA Microfilm Collection, JCS, Parti, European Theater, Roll 12. 26 Lt. Col. Harry S. Messec, »The Yalta Agreement and Evolution of Its Interpretation Concerning Repatriation of Soviet Citizens«, 17 October 1946, Institut für Zeitgeschichte (IFZ), Munich, Ger- many, RG 260 (Office of Military Government for Germany, United States = OMGUS), 3/176—3/7, microfiche nr. 1, and OCMH, Disarmament and Disbandment (see fn. 21), Section 8. 27 Eisenhower to Adjutant General, War Departement (AGWAR), 5 June 1945, NA, RG 332, Box 51, File 383.6/11, and JCS 1266/5, »Disposition of Soviet Citizens Claiming Status as German Prisoners of War«, 8 June 1945, NA Microfilm Collection, JCS, Parti, Strategic Issues, Roll 12. 28 Department of State, »Proposed Transfer to the Soviet Authorities in Germany of Soviet Na- tionals now held in the United States as German Prisoners of War«, 23 June 1945, NA, RG 59, Box 3554, 740.00114 EW/6-1145. 29 Joseph Grew to Forrestal, 12 May 1945, FRUS (see fn. 22), 1945, vol. V, p. 1096. 30 AGWAR to Allied Force Headquarters (AFHQ) for Alexander and SHAEF Main for Eisenhower, 10 July 1945, NA, RG331, SHAEF G-l, Box 24, File 383.4, CCS 576/10, »Disposal of Allied and Neutral Nationals Captured While Serving in Enemy Forces«, 15 June 1945, NA, Microfilm Collection, JCS, Part I, Strategic Issues, Roll 12, and OCMH, Disarmament and Disbandment (see fn. 21), pp. 30-31. The United States and the Denial of Prisoner of War 97

There were thus a number of instances on both sides during the Second World War where POW status was denied to captured enemy military personnel for various reasons, often of questionable legal validity. This brings us to the larger question of DEF status. As early as 1943 it had become clear that the Allied governments intended not to permit Germany to claim after the Second World War, as it had done after the First, that promises had been broken or armistice terms betrayed. This was the basis for President Roosevelt's announcement at the conclusion of the Casablanca Conference in January 1943 that the main objective of the war was the »unconditional surrender« of Germany and the other Axis powers, and the total elimination of their war power. There would be no promises to Germany this time regarding its post-war treatment, and the Allies planned to commence with a clean slate as far as the anticipated occupation of German territory. That clean slate did not appear to exist, however, because of the existence of the 1907 Hague Rules of Land Warfare and the 1929 Geneva Convention, and a great deal of discussion and debate subsequently occurred within Allied political and military circles regarding the provisions of these treaties. The questions involved the restrictions which these two conventions might and might not place upon an eventual Allied occupying army in post-war Germany, and the carrying out of various Allied war aims. The first plan actually setting out in detail the possible implications of unconditional surrender on the treatment of post-war Germany was submitted by the British representative on the European Advisory Commission in London in January 1944.32 That draft surrender document was predicated on the intent to confer upon the Allied governments and the victorious United Nations far-reaching powers in defeated Germany »which they would not in law enjoy on a basis of ordinary military occupancy«.33 When the Soviet government submitted their own draft surrender proposal to the EAC in February, Allied discussions on the more specific question of how they planned to deal with captured Ger- man military personnel after the war also commenced. The Soviet draft contemplated that after the surrender of Germany and the assumption of supreme control by the Allied authorities, German troops would not be disbanded and allowed to return to their homes, but would be interned and employed as reparations labourers. The Soviet draft also anticipated that all captured German military personnel would be designated POWs, including those taken into custody during and after the defeat of Germany. The Soviets, who were not signatories to the 1929 Geneva Convention, were obviously not concerned about the implications of guaranteeing POW status to millions of surrendered German troops, nor with the moral and legal obligations which that would entail. The Americans were, however, and they explained to the Soviet representative on the European Advisory Commission (EAC) that the term prisoner of war had a »precise connotation in international law as declared in the Prisoners of War Convention«. They complained that the Soviet proposal would be an »exceptional burden« and would impose enormous demands upon the Allied governments in order to provide food, clothing and shelter to

31 Report for Period 04 April 1942 to 03 April 1946, NA, RG 153, Records of the Office of the Judge Advocate General, War Crimes Branch, Judge Advocate General (JAG) Law Library, Box 80, p. 17. 32 This body was established in London in late 1943, and contained both civil and military representatives from each of the three major Allied powers. Its main task was to study and make recom- mendations to the Allied governments on questions regarding the termination of hostilities in Europe and the terms of surrender for Germany. 33 Thompson, Military Surrenders (see fn. 17), pp. 20—23. 98 MGM 52 (1993) Richard D. Wiggers such large numbers, as well as limiting »the legal right of the United Nations to deal with« the German POWs, particularly in the case of war criminals and Allied traitors.34 The ensuing discussions on this issue continued for several months and were only concluded in May 1944, the Soviets holding fast to their position that they wanted all Ger- man military personnel to be declared POWs after the war in order to bring home to the Germans the completeness of their military defeat. Both the British and the Soviets also intended to employ large numbers of German personnel in postwar reconstruction projects, however, so at the same time as declaring the latter POWs they hoped to avoid some of the restrictions on their care and employment that would arise as a result of full application of the Convention.35 Finally, since under the terms of the 1929 Geneva Con- vention the release and repatriation of captured enemy military personnel was meant to be granted »as soon as possible after the conclusion of peace«, only a strained interpretation of the Convention could permit captured German military personnel to be kept on as POWs and reparations labourers until sometime after a final peace treaty was signed. As one memorandum to the U. S. representative on the EAC put it, a solution was required which would permit leeway to the Allies in the treatment and postwar employment of German personnel while also ensuring »that there would be no wave of adverse public opinion amongst the democratic peoples if the Hague and Geneva Conventions were not complied with.«36 Many in Allied circles also doubted whether the thought of making a whole army prisoners of war on the cessation of hostilities had ever occurred to the framers of the original 1929 Convention. The EAC surrender instruments which finally emerged from this attempt to compromise conflicting Allied war aims proclaimed that it would be the »right« rather than the obligation of the three Allied Powers to declare all captured German military personnel to be POWs. Those designated POWs would be treated in accordance with the statutes of international law. But the U. S. War Department had already determined that after the termination of hostilities U. S. forces in Europe »would not declare any of the German armed forces prisoners of war«, looking forward perhaps to their rapid release.37 Thus began the rationale for the creation of a new status for captured German military personnel. An October 1944 memorandum for the U.S. Assistant Secretary of War indicated that German military personnel in U. S. custody upon the cessation of hostilities would be entitled to the rights and protection of the 1929 Geneva Convention »unless held in some other recognized legal status«.38 Another memorandum from the Inter-Divisional

34 JAG T. L. Gatch to the Chief of Naval Operations, »Status of German Armed Forces After Sur- render«, 24 March 1944, NA, RG43, Mosely Papers, Box 9, File 139, CAC 92, »Comment on the Proposal to Declare All Surrendered German Forces Prisoners of War«, 3 March 1944, NA Microfilm Collection, RG59, Series T-1221, Roll 1, US Embassy, London to the Secretary of State, 22 February 1944, NA, RG 59, Box 2818, and Stettinius to Winant, 3 March 1944, FRUS (see fn. 22), 1944, vol. 1, pp. 191-2. 35 Commander Willis Sargent to Admiral Stark, »Conference with Captain C. K. Lloyd of the British Post-Hostilities Committee«, 07 April 1944, NA, RG43, Mosely Papers, Box 9, File 139. 36 LC Willis Sargent to Ambassador Winant, »Remarks of Captain C. K. Lloyd, RN«, 28 March 1944, NA, RG 43, Mosely Papers, Box 9, File 139. 37 Col. T.W. Hammond, memorandum for the JCS, »European Advisory Commission«, 21 July 1944, NA Microfilm Collection, JCS, Part I, European Theater, Roll 12, and JCS Memorandum for Information No. 257, »Draft of Surrender Terms for Germany«, 28 June 1944, ibid. 38 Cutter to the Assistant Secretary of War on »G-1 Planning Committee Report on Status and Employment of Italian and German Prisoners of War on Collapse of Germany«, 31 October 1944, NA, RG 107, McCloy Papers, Box 2, File 383.6. The United States and the Denial of Prisoner of War 99

Committee that same month discussed the distinction between POWs who were held as »captives« and those taken into custody as »surrendered forces«, and indicated that the latter should not be declared prisoners of war.39 In early February 1945 the disbandment section of the SHAEF Handbook was revised, and for the first time some of the categories of prisoners to be treated as »disarmed forces« were outlined.40 The EAC guidelines by that time also explicitly stated that the Allied Army Groups »might adopt the expediency of treating the German Forces as disarmed forces rather than as PW when the Commander considers that disintegration had set in.« No public declaration about the new designation was to be made so as not to draw attention to the derogation from the Geneva treaty obligations to feed and otherwise maintain millions of captured German military personnel on a scale equal to Allied base troops, which was considered beyond the ability of the U.S. Army.41 Thus, when Eisenhower made his secret appeal of March 1945 for approval of the use of the DEF designation, he was merely seeking confirmation for a procedure which had already been agreed upon in Washington and London months earlier. The first actual use of the DEF designation was contained within the text of the surrender terms for the Italian theater of operations, which became effective on 2 May 1945. The surrender document stipulated that those German military personnel taken into Allied custody in the Italian theater would be held under the status of »Surrendered Personnel« or declared POWs at the discretion of the Supreme Allied Commander.42 On 4 May 1945 the next military capitulation was made to the British 21st Army Group in northwest Europe, and that same day Eisenhower sent a message to the Army Groups under his command authorizing the employment of »Disarmed German Forces« status.43 This was followed on 6 May 1945 by the surrender to U. S. Army General Devers of all German

39 CAC 311, memorandum of the Inter-Divisional Committee, »Germany: Occupation Period: Status and Treatment of the Disarmed German Forces Prior to Final Disposal«, 26 October 1944, NA, RG43, Mosely Papers, Box 26, File »Miscellaneous Studies — Germany«. 40 SHAEF G-l to the Disbandment Branch, 02 February 1945, NA, RG 331, SHAEF G-l, Box 30, File 384.1. 41 BG T.J.B. Bosvile to Barker, 18 April 1945, NA, RG 331, SHAEF G-l, Box 26, File 383.6/3, and OCMH, Disarmament and Disbandment (see fn. 21), Section 7. 42 CCS Information Memorandum No. 277, »Instrument of Local Surrender of German Forces in Italy«, 7June 1945, NA Microfilm Collection, JCS, Parti, Roll 11, Bradley F. Smith and Elena Agarossi, Operation Sunrise: The Secret Surrender, London: 1979, p. 151, and Thompson, Military Surrenders (see fn. 17), p. 31. 43 SHAEF G-l memorandum, 04 May 1945, NA, RG331, SHAEF G-l, Box 30, File 384.1, and OCMH, Disarmament and Disbandment (see fn. 21), point 7. Some confusion appears to have occurred in the 21st Army Group regarding the use of the DEF designation. On 03 May 1945 a secret message was sent to the headquarters of the the Canadian First and British Second Ar- mies withdrawing an earlier order granting authority to hold »capitulated« Germans without PW status. See NA, RG331, SHAEF G-l, Box 31, File 384.1. 44 Thompson, Military Surrenders (see fn. 17), pp. 39—41 and 54—55. 45 US Embassy, Oslo to the Secretary of State, 25 June 1945, NA, RG59, Box 3554, 740.00114 EW/6—2545, Charles Peake, British Political Office, to the Chief of Staff, SHAEF, 03 February 1945, NA, RG 331, SHAEF G-l, Box 31, File 387.4/11, and EXFOR Rear to SHAEF G-l, 06 May 1945, NA, RG 331, SHAEF G-l, Box 30, File 384.1. A report by the Combined Civil Affairs Committee on the »Treatment of German Armed Forces Captured in Norway and Italy Incident to the Cessation of Hostiiities«, C. C.S. 823/3, 02 June 1945, explained that military personnel captured in these two theaters might »legally be in a different position than military personnel captured in Germany. Administrative necessity requires, however, that the same formula [DEF designation] should at least temporarily be followed in European countries outside of Germany.« See NA, RG 43, Mosely Papers, Box 6, File 134.17. 100 MGM 52 (1993) Richard D. Wiggers forces in southern Germany and Austria,44 and Operation »Apostle« in which 350,000 German military personnel of all types surrendered to Allied troops in Norway. The one million German military personnel who surrendered in the Italian theater and all of the German troops who surrendered in Norway and northern Germany were subsequently designated and treated as »disarmed enemy personnel« rather than POWs.45 The final instruments of military surrender were signed on 7 May 1945 by representatives of the German High Command at SHAEF Headquarters in Reims, France, and in Berlin the following day. These two documents transferred control of all German armed forces from the German High Command to the Supreme Commander of SHAEF and of the Soviet Red Army.46 The capitulation documents also expressly stated that the military surrender would be without prejudice to »any general instrument of surrender imposed by the United Nations« at a later date. Not only did the Allied governments want to exercise complete control over the Ger- man state and military, but they also wanted no interference from outside parties over decisions regarding the conditions and treatment of German and Axis prisoners of war in their custody. The Allied governments intended to exercise sovereignty over the Ger- man state through the Control Council for Germany, but they also intended to act as Protecting Power over the German military prisoners in their custody. The Protecting Power was responsible for ensuring implementation of the Geneva Con- vention and safeguarding the interests of those prisoners of war being held in the custody the Detaining Power. Simultaneously with the German capitulation in May 1945, the US State Department announced that as of 8 May 1945 the Swiss government »will no longer represent interests of German prisoners of war in U. S. custody in the U. S. as well as over- seas«. All communications concerning German prisoners of war which had formerly been addressed to the Swiss government in its role as Protecting Power would now be forward- ed to the US State Department for onward transmission to the Allied Control Council for Germany where the four Allied powers would share in »forming a Government for Germany«. A promise was also made that German POWs .in U.S. custody would continue to be treated in accordance with the Geneva Conventions pending their repatriation,47 although no mention was made of the millions of DEFs. As with the occupation of Germany and the exercise of de facto sovereignty over that defeated state, the removal of Switzerland as the Protecting Power for German military personnel in Allied custody was an innovation which probably did not conform with the spirit, if not the letter, of international law as it existed at the time.48 Certainly several years later, in Article 10 of the expanded 1949 Geneva Convention accords, the need to avoid similar situations in future armed conflicts was recognized when it was decided that »whenever prisoners cease to benefit from the activities of a Protecting Power, or of an

46 Office of the Chief Historian, European Command, The Terms of Surrender: Their Enforcement in the United States Tone, Occupation Forces in Europe Series, 1945—54, Frankfurt a.M.: 1947, p. 9. 47 Secretary of State to General W.B. Smith, SHAEF, 13 May 1945, NA, RG 332, Records of the European Theater of Operations, Records of the Secretary, General Staff, Box 51, File 383.6/10, and US Embassy, London to the Commanding General of the UK Base, NA, RG 332, Judge Ad- vocate Section, Box 37, File 383.6. 48 Albert J. Esgain and Colonel Waldemar A. Solf, »The 1949 Geneva Conventions Relative to the Treatment of Prisoners of War: Its Principles, Innovations, and Deficiencies«, North Carolina Law Review, vol. 41, 1962—63, p. 565. The United States and the Denial of Prisoner of War 101 organization, the Detaining Power must require a neutral state or an organization to assume the function.«49 It is difficult to determine precisely how many were designated DEFs rather than POWs during and after the collapse of Germany. The first SHAEF report which clearly distinguish- ed between the two categories only appeared on 26 May 1945, more than three weeks after Eisenhower first authorized Army Group commanders to employ the DEF status,50 and it did not include the figures for the Norwegian and Italian theaters of operations. Almost one million DEFs were discharged by SHAEF by 19 June 1945, 800,000 of them by the 3rd U. S. Army alone. This left more than 780,000 of those capitulating German troops who were originally designated DEFs still in SHAEF custody in Germany during June 1945 when their numbers began to be added to by new transfers.51 It is the latter policy of transferring captured German military personnel from POW to DEF status upon which Bacque has focussed much of his attention in his controversial book. During January and February 1945 Allied military directives ordered that German POWs already in U. S. custody should not be promised that they would be released soon after hostilities had ended. The British and Americans wanted to reduce many of those who were already being held as POWs to DEF status after the war in order to limit their legal obligations to their care, and they also intended to employ many of these soldiers as reparations labourers.52 This policy began to be implemented late in May 1945 when acute problems and shor- tages were being reported in the Prisoner of War Temporary Enclosures in the European Theater of Operations. The U. S. Army felt that it would be a massive and unacceptable »burden« to provide the food and accomodation which would be required to maintain these prisoners at POW standards. Rather than disbanding the German troops immediately, a move which some U. S. military officials were urging,53 or face criticism for violating the 1929 Geneva Convention and failing to meet its obligations, the Army's solution was to transfer the captured enemy personnel to DEF status, where they were supposed to be administered and cared for by the German civil authorities.54 The argument employed to rationalize this action was that even though some captured enemy military personnel had originally been reported as POWs, they »have not been so regarded and have not acquired the legal status of POWs«. In this way 490,000 German POWs were transferred to DEF status by 9 June 1945, and only three days later that total had doubled to one million. The number of transfers from POW to DEF status were such that by 14 June 1945 three of the five million German military personnel in U. S. custody had been designated as »disarmed forces«.55

49 Jean S. Pictet, »The New Geneva Conventions for the Protection of War Victims«, American Journal of International Law (AJIL), vol. 45, 1951, p. 469. 50 OCMH, Disarmament and Disbandment (see fn. 21), point 18. 51 SHAEF G-l, Weekly PW and DEF Reports, NARS, RG 331, SHAEF G-l, Box 26, File 383.6/1-3. 52 AGWAR to McClure, ETOUSA, 08 January 1945, NA, RG 59, Box 3861, 740.00119 EW/1-845, BG Β. M. Bryan to Bernard Gufler, 07 February 1945, NA, RG 59, Box 3552,740.00114 EW/2-745, and Barker to the Chief of Staff, SHAEF, 09 February 1945, NA, RG 331, SHAEF G-l, Box 30, File 384.1. 53 Various communications dated 29 May-04 June 1945, NA, RG 331, SHAEF G-l, Box 26, File 383.6/3. Major Lewis, ETO to 12th Army Group, 27 May 1945, NA, RG 331, SHAEF G-l, Box 31, File 387.4/1. 55 G-l, SHAEF to Major B. Ketchler, 09 June 1945, NA, RG 331, SHAEF G-l, Box 25, File 383.6/1, G-l to G-3, SHAEF, 12 June 1945, NA, RG 331, SHAEF G-l, Box 26, File 383.6/1-3, and G-l, 102 MGM 52 (1993) Richard D. Wiggers

Several months later, in September 1945, a final step was taken when it was announced that all members of the German armed forces still held in U. S. custody in their zone of occupation would henceforth be considered as DEFs and not as having the status of POWs, their Geneva Convention rights having been »superseded« by the unconditional surrender of Germany. Nevertheless, the U.S. continued to demand that those captured German military personnel transferred to France and other of the United Nations as reparations labour should continue to be designated and maintained as POWs.56 In response to pro- tests from the International Committee for the Red Cross (ICRC), the U. S. authorities finally did away with the DEF distinction in March of 1946, and returned the German military personnel still in their custody to POW status.57 While Bacque was correct regarding the fact that some POWs were switched to DEF status, his allegations about the »lethal« treatment and mass deaths which resulted are almost certainly not true. Although German military personnel who were declared DEFs were depriv- ed of certain Geneva Convention rights granted to those who were designated POWs, on the whole the treatment and living conditions of the two groups appear to have been similar.58 In fact, the lack of a clear administrative distinction between the two categories of captured personnel in U. S. custody after the war remains one of the mysteries regarding the DEF designation. Even Bacque admits that switching German personnel from POW to DEF status »did not require any shift of men to new camps, or new organization to get German supplies to them. The men stayed where they were, with no more shelter, or less. All that happened was that by the clatter of a typewriter, their skimpy bit of U. S. army food was stopped.«59 It has long been known that thousands of captured German military personnel perish- ed while in U. S. custody at the end of the Second World War. But there is no solid historical evidence to support James Bacque's allegation that mistreatment and murder on a massive scale were either the intended or the actual outcome of the denial of POW status and the creation of a new DEF designation. In fact, those Germans who were denied POW status by the Allies after the war certainly still fared better than the Soviets, Poles, Yugoslavs, Italians and others who had been denied POW status by Nazi Germany during the war, or the captured German military personnel who retained their POW status and were transferred as reparations labour to other of the United Nations such as France.

There were numerous reasons why the Allies at the end of Second World War wished to avoid designating captured German military personnel as POWs and treating them according to Geneva Convention standards. There was a desire to prevent the German Army from re- turning home with »banners flying«. There was also the serious food shortage in post-war

SHAEF, »Disbandment Directive No. 5«, 14 June 1945, NA, RG 331, SHAEF G-l, Box 26, File 383.6/3. However, according to the Office of the Chief of Military History, it was four of six and not three of five million German military personnel who were held in U.S. custody and declared DEFs. See OCMH, Disarmament and Disbandment (see fn. 21), point 18. 56 Even the Legal Division of the U. S. Group on the Control Commission for Germany acknowledged the hypocrisy of this situation. See the memorandum from the Legal Advice Branch, Control Council for Germany, 21 September 1945, IFZ, RG260 (OMGUS), 17/56—3/6, microfiche 3. 57 Rapport du Comite, vol. 1 (see fn. 14), p. 564, and Revue internationale, vol. 77, October 1946, p. 840. The practice did continue in the Pacific theater for captured Japanese military personnel, however, the argument being that the Surrendered Enemy Personnel (SEP) status was easier to reconcile with the Japanese conception of honour. The Japanese troops remained under the authority of their own officers, and thus were more willing to obey the surrender orders. 58 Wilhelm, Can the Status (see fn. 13), p. 6. 59 Bacque, Other Losses (see fn. 6), p. 51. The United States and the Denial of Prisoner of War 103

Europe, and captured German military personnel were low on the list of priorities to receive adequate food rations. Undoubtedly some Allied officials wanted to punish the Germans for their own war-time violations of the Geneva Conventions. During May and June 1945 there were even several proposals before American military authorities that would have seen the United States renounce the Geneva Convention as a result of its earlier non-observance by Germany, but it was finally decided that such renunciation would be »unwise« and contrary to Article 96 of the Convention.60 Related to that was the view that the Geneva Conven- tion should not be permitted to prevent the identification and prosecution of German war criminals, or of Allied traitors who had fought during the war in German uniform. Finally, the desire to utilize captured German military personnel in post-war reparations labour was on the minds of many Allied officials, even though lengthy post-war detention of German POWs would violate the spirit if not the law of the 1929 Geneva Convention. There were also specific long-term tasks for which the Allies hoped to employ large numbers of captured German military personnel which were in clear violation of the Geneva Con- vention. SHAEF admitted that employing captured German military personnel in mine- clearing work, for instance, would be a violation of the 1907 Hague Rules and the 1929 Geneva Convention rules for POW or civilian labour, but speculated that DEFs might be employed since they were not covered by either.61 The Allies also intended to transfer hundreds of thousands of captured German military personnel to the Pacific Theater where they would be employed in the war against Japan, another violation of the Hague and Gene- va Convention rules for which DEFs were probably better suited.62 But it was the desire to have a free hand, rather than an intent to commit mass murder, which stood behind the denial by the U. S. and its Allies of POW status to German military personnel. According to an official U. S. Army Historian, Earl F. Ziemke, even the unconditional military surrender of Germany did not give the Allies the authority to exclude German military personnel from the provisions of the Geneva or the Hague Conventions.63 A legal expert writing an opinion for the Civil Affairs Division several months before the war had ended also concluded that without a clause in the surrender instrument or a treaty stipulating that the Geneva Convention would no longer apply to German military personnel in Allied custody, it would be impossible to consider »the present disregard of the prisoners of war conventions by this Government in any other way than as a breach of contract, more or less circuitous in character.«64 Officials of the ICRC, as well as many contemporary experts in international law, were also of the view that capture must lead directly to the granting of POW status. Enemy

60 JAG to G-l, 11 May 1945, NA, RG 107, McCloy Papers, Box 36, File 383.6, and SHAEF Board of Inquiry, »Treatment by the German Government of American and British Prisoners of War, Europe 1939-1945«, IFZ, RG 84 (U.S. Political Adviser = POLAD), 728/20, microfiche Nr. 2. 61 LC Ray Adams to Barker, SHAEF G-l, 3 June 1945, NA, RG331, SHAEF G-l, Box 30, File 387.4/1, and Legal Division, US Group Control Council, 21 September 1945, IFZ, RG260 (OMGUS), 17/56—3/6, microfiche Nr. 3. U.S. Historian Arthur L. Smith has estimated that a total of 80,000 POWs/DEFs were employed in mine-clearing work after the war, 12,000 of whom were killed or injured in the process. See Arthur L. Smith, Heimkehr aus dem Zweiten Weltkrieg: Die Entlassung der deutschen Kriegsgefangenen, Stuttgart: 1985, p. 25, 137. " U.S. Embassy, London, 24 November 1944, NA, RG 59, Box 2802, 740.00114 EW/11-2444 and Caserta to the Secretary of State, 05 June 1945, NA, RG 59, Box 3554, 740.00114 EW/6-545. 63 Earl F. Ziemke, The US Army in the Occupation of Germany 1944—1946, Washington: 1975, p. 259. 64 Colonel W.C. Chanler, Civil Affairs Division (CAD), to Philip Jessup, 24 January 1945, Franklin Delano Roosevelt (FDR) Library, Hyde Park, Fahy Papers, Box 65, and Ralph M. Carson to Colonel W. C. Chanler, CAD, 19 May 1945, ibid, File »Legal Consequences of Unconditional Surrender«. 104 MGM 52 (1993) Richard D. Wiggers

military personnel in the custody of Nazi Germany during the war, and of U. S. and British forces at the end of the Second World War, whether or not they were actually designated POWs by their captors, were still entitled to the protection of that status and of the 1929 Geneva Convention even when their state of origin capitulated unconditionally.65 The Allies, like the Germans before them, simply took advantage of a new circumstance not foreseen by the framers of the 1929 Geneva Convention, namely the unconditional surrender of an enemy state. Although those German and Japanese military personnel who were designated SEPs and DEFs were in general treated in accordance with the Conven- tion, the ICRC was disturbed with the existence of the alternative status at all, an act which it claimed »imperils the very existence of the status laid down in the Convention of 1929 in behalf of Prisoners of War.«66 The expanded 1949 Geneva Conventions recognized the abuses which had occurred on both sides during and after the Second World War. Articles 82—108 established guidelines for the prosecution of war criminals and stated that prisoners of war could not be discharged and reinterned, and then tried as civilians before special war crimes tribunals, as had been done in post-war Germany.67 The delegates to the discussions which led to the 1949 Con- ventions also attempted to deal with the repatriation issue, and attempted to close loopholes about POW status which had been employed by both sides in the Second World War. In Article 4 of the expanded 1949 Convention the terms »belonging to the Armed Forces« and »fallen into the power of the enemy« rather than captured were employed in order to cover all possible designations of enemy personnel taken into custody by a detaining power.68 Article 5 made the further stipulation that enemy personnel must keep their POW status until their final release and repatriation, and if reinterned for any reason by the detaining power they would automatically regain that status. Article 6, finally, provided that no special agreements or political changes, including the disappearance of a state, could adversely affect POW status.69 In this manner the large-scale denials of POW status which had occurred during the Second World War, including the designation of millions of captured Ger- man military personnel by the U. S. and their British allies as DEFs, were consigned to ob- livion as henceforth a violation of the Geneva Conventions in law and not only in spirit.

65 Albert J. Esgain and Colonel Waldemar A. Solf, »The 1949 Geneva Conventions Relative to the Treatment of Prisoners of War: Its Principles, Innovations, and Deficiencies«, North Carolina Law Review, vol. 41, (1962—1963), pp. 552—3, Andre Durand, From Sarajevo to Hiroshima: History of the International Committee of the Red Cross, Geneva: 1978, p. 626, and L. C. Green, »Canada's Role in the Development of the Law of Armed Conflict«, Canadian Yearbook of International Law, vol. 18, 1980, p. 99. 66 Letter from Max Huber of the International Committee of the Red Cross (ICRC) to James F. Byrnes, Department of State, 06 September 1946, RG 59, Box 3555, 740.00114 European War (EW). 67 Wilhelm, Can the Status (see fn. 13), p. 33, G.I. A.D. Draper, The Red Cross Conventions, Lon- don: 1958, pp. 61—67, Ingrid Detter de Lupis, The Law of War, Cambridge University Press, New York: 1987, p. 284, Esgain and Solf, »The 1949 Geneva Conventions« (see fn. 65), pp. 576—77, Canadian Forces Law of Armed Conflict Manual, Second Draft, sections 9—33 through 9—36, Ray- mund T. Yingling and Robert W. Ginnane, »The Geneva Conventions of 1949«, AJIL, vol. 46, 1952, pp. 405—406, and Dr. J. H. W. Verzijl, International Law in Historical Perspective, Part IX- A: The Laws of War, The Netherlands: 1978, p. 109. 68 Esgain and Solf, »The 1949 Geneva Conventions« (see fn. 65), p. 554, and Wilhelm, Can the Status (see fn. 13), p. 7. 69 Wilhelm, Can the Status (see fn. 13), p. 7, 11, 17—19, 33, and de Lupis, The Law of War {sec fn. 67), pp. 282—3. This clause was also meant to address the transfer from POW to civilian labour status which occurred in the case of French POW's in German hands, Italian POW's in Allied hands, and German POW's in post-war France.