The Deserter and the Enemy Party

chapter 3 The Deserter and the Enemy Party

There are many circumstances under which deserters could find themselves in the power of the enemy during an international armed conflict. They might be captured by enemy troops while abandoning their own military unit, or get caught while in hiding days, weeks or even months after the desertion. In other cases, deserters might place themselves voluntarily into the hands of an adverse party, either because they hope for better conditions on the enemy side and safety from punishment by their home country, or because they wish to defect, i.e. join the enemy in fighting against their own state. Whether deserters will actively try to reach the enemy will largely depend on the treatment that they can expect in a given conflict, both from their home country and from the other belligerent. Would they face the death penalty at home? Would they be enslaved, or treated humanely in captivity by the enemy? Would they be accepted into the army of the enemy, or would they risk being handed over for ransom?1 The answers to these questions depend on the political and legal regimes in the respective belligerent countries and the extent to which these countries respect the rule of law during the conduct of hostilities. But they also depend on the nature of the armed conflict itself, i.e. whether the lines of battle are mostly drawn along the lines of ethnicity, geo-political inter- ests, or fundamental ideological beliefs.

Desertions Welcome, but not Deserters

Belligerents have long recognised the tactical and psychological benefits that individual and mass desertion from the enemy forces can bring to their own war effort.2 As such, propaganda appealing to the ideological convictions of the soldiers, or promising good treatment or rewards in order to encourage

1 See also Afflerbach and Strachan, who point out the the overlap between the question of surrender to the enemy and the treatment of prisoners of war, in: Holger Afflerbach and Hew Strachan, A ‘True Chameleon’, Some Concluding Remarks on the History of Surrender, p. 437. 2 James D. Clause, The Status of Deserters Under the 1949 Geneva Prisoner of War Convention, Military Law Review, 1961, p. 15; L.B. Schapiro, Repatriation of Deserters, Brit.YB.Int.’l L. 1952, p. 315. For examples of calls to desert during World War ii, see Chapter 2 in: Franz Seidler, Fahnenflucht, p. 61 ff.

118 chapter 3 desertions have been commonly used by belligerents as part of psychological warfare.3 Generally speaking, good treatment of enemy deserters is in the interest of a belligerent party, in as much as it might encourage further desertions,4 just as the fear of being mistreated by the enemy might prevent soldiers from deserting or surrendering voluntarily, even if they have lost their will to fight.5 In the Peninsular War of 1807–1814, the British promised safety and finan- cial reward to every soldier who deserted from Napoleon’s army and defected to the British forces.6 During the course of World War ii, the Headquarters of the Commander of Allied Forces in north-west Europe included a division on psychological warfare, which actively sought to undermine German morale and to encourage desertion by German troops by dropping leaflets behind German lines promising safe conduct and good treatment to potential German deserters.7 Similarly, during the battle of Stalingrad in World War ii, Soviet aircraft encouraged soldiers fighting on the German side to desert by dropping leaflets written in Hungarian, Italian and Romanian, which urged soldiers not to die needlessly for the Germans.8 Inciting enemy combatants to desert is considered to be a lawful tool of psychological warfare, and belligerents are free to distribute defeatist propaganda in order generally to disparage the war efforts of the enemy combatants’ home country, or openly to induce them to revolt or desert.9 For aerial warfare this right has been explicitly mentioned in the 1923 Hague Rules of Air Warfare,

3 Stefan Oeter, ‘Methods and Means of Combat’, in: Dieter Fleck (ed.), The Handbook of International Humanitarian Law, p. 231. 4 James D. Clause, The Status of Deserters under the 1949 Geneva Prisoner of War Convention, Military Law Review, 1961, pp. 15 and 38; L.B. Schapiro, Repatriation of Deserters, Brit.YB.Int.’l L. 1952, p. 315. 5 Beevor quotes from an interview of a Ruthenian deserter questioned by the Russian side, who reported that soldiers were afraid to desert because they believed the stories that the Russians would torture and shoot them, in: Antony Beevor, Stalingrad, p. 182. 6 “Ne craigniez pas la vengeance du Tyran, elle ne scaurait vous atteindre. Les enfants toujours victorieux de la glorieuse Albion vous protégeront…” – a leaflet by the British addressing the Napoleonic troops in 1810 as quoted by L.B. Schapiro, Repatriation of Deserters, Brit.YB.Int.’l L. 1952, p. 316. 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. 98. 8 Antony Beevor, Stalingrad, p. 181. 9 See: Yoram Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict, p. 240; L.B. Schapiro, Repatriation of Deserters, p. 323; K.J. Madders, War, Use of Propaganda in, 4 epil p. 1394; Stefan Oeter, ‘Methods and Means of Combat’, in: Dieter Fleck (ed.), The Handbook of International Humanitarian Law, p. 231. See also: Jean-Marie Henckaerts/Louise