Features Australia

Battlefields are also minefields of uncertainty

What really constitutes a war crime?

28 March 2020

9:00 AM

28 March 2020

9:00 AM

Given the long-running debate on battlefield behaviour in our combat troops, it is worthwhile pointing out there is considerable opportunity for confusion in such areas. Here is a catalogue of actual historical events which might give pause for thought.

In World War I, the Australian soldier Albert Jacka VC stormed a trench with four Germans in it who were firing at him. He kept going, however, and eventually the Germans ‘…flung down their rifles and put up their hands.’ However, he shot three and bayoneted the fourth, explaining: ‘I had to do it – they would have killed me the moment I turned my back.’ War criminal?

In January 1945, six German SS officers were captured by two men of Easy Company of the USA’s 101st Airborne in an assault on the village of Rachamps. Seconds later, when a shell exploded nearby, one of the Germans pulled a knife from his boot and slashed it across an American’s throat; the other US soldier machine-gunned all six. Is this a war crime?

Parachutist David Webster’s unit participated in a surprise night assault a few days after their D-Day landing. They were exhorted to use knifes and bayonets, then grenades where necessary, but not to take prisoners, because ‘…we can’t be dragging a lot of prisoners around with us at night’.

US Army General Maxwell Taylor told US paratroopers before their jump on D-Day not to take prisoners, a command passed down by his officers, who told their men on getting into their aircraft: ‘No prisoners. We are not taking any prisoners.’


Some of this may well have been due to the realisation of the nature of this attack: it depended on speed and surprise and it was essential to get enough men ashore fast and to push the Germans back far enough to allow that; otherwise the precarious foothold on Europe may well have been lost. Is this behaviour excusable or chargeable?

US soldier E. B. Sledge’s unit took a Japanese prisoner on Okinawa towards the end of that WWII campaign. Their prize was wearing nothing but a G-string and weighed about 50 kilograms. He was docile and the unit was sitting around on their helmets, having called their medical corpsman over to check out the Japanese. Suddenly, out of his G-string, the prisoner produced a grenade and pulled the pin, but not quickly enough to prevent one of the Americans shooting him with his pistol. Is this justifiable?

Guy Sajer, fighting in WWII in the German Army, had his first experience of combat in a small action which saw one foreign semi-civilian partisan wounded, and another killed. When he tried to get the wounded man onto a passing train full of injured being taken to the rear the lieutenant in charge was incredulous. ‘Do you really think I’m going to saddle myself with one of those bastards who’ll shoot you in the back any time…’ and he ordered two soldiers to shoot the partisan immediately. Cautionary behaviour or unjustified?

In Okinawa, the Japanese military drove civilians, including children, towards the front lines of American Marines. Supposing them to be troops, the US soldiers opened fire. One of the soldiers involved thought the Japanese did it for two reasons: to get the Americans to expend ammunition and to lower their morale when they found out what they had done. In the latter case it apparently indeed had a devastating effect when the men saw the results of their actions. Should those men have been charged?

In the Korean War PFC Leonard Korgie wrote: ‘People dressed in white – civilians being driven in front of the enemy or North Koreans dressed as civilians – appeared on the opposite hill, hundreds of them. They came down the hill and into the valley heading straight for us.’ They were shot down by the US soldiers defending the position. Should we find those American soldiers, if there are any still alive, and charge them? On another occasion in Korea the correct nature of the foe could not be identified. At the fighting in Seoul PFC Francis Killeen’s company ‘spotted a small party of soldiers, the rest we took for guerillas’ who they shot at. They turned out to be civilian villagers. Are Killeen and his comrades war criminals?

In the Falklands War, a British Harrier aircraft targeted an unarmed Argentine Hercules transport aircraft bringing in supplies at night, attacking it with a missile and cannon fire. The missile hit one wing between the engines and knowing of the fire-suppression system on board, the pilot, Lieutenant Commander ‘Sharkey’ Ward, closed and attacked the aircraft further with his guns. The aircraft crashed into the sea and there were no survivors. Is Ward guilty of a crime?

Two particularly horrible incidents from Vietnam finish this reflection. Most soldiers ponder possibly killing civilians by mistake, but until the time comes, when one has to make that decision, it is not easily understood. In any war against an enemy who can become a combatant simply by taking up arms, there will be confusion, mistakes, mayhem and death.  For civilians seeing conflict on TV, they will inevitably rail against the seemingly savage and morally wrong dimensions of the conflict. Yet, not being there, and seeing only a fragment of the picture, leads to distortion of the reality of what is often self-defence. A US Army sergeant in Vietnam related: ‘Yesterday I shot and killed a little 8-or 9-year old girl, with the sweetest, most innocent little face, and the nastiest grenade in her hand, that you ever saw. Myself and six others were walking along, when she ran out to throw that grenade at us. Of course there is always the old argument that it was either us or her, but what in hell right did I have to kill a little child?’

Marine John A. Daube recalled: ‘One day a Vietnamese boy about eight years old approached our group wearing a knapsack. It looked like the bookbags kids use today. It was in the middle of the summer, so we were pretty certain there was no school. A reflection of the sun highlighted a wire that ran over the kid’s shoulder and down his arm. One of the Marines shot him. As the child fell, he pulled the wire and blew himself up. This may sound barbaric to some, but it was common for the VC to sacrifice their children just to kill a few Marines.

Judging our forces’ combat behaviour is no easy matter.

Dr Tom Lewis OAM is the author of Lethality in Combat (Big Sky), which discusses the realities of battle. He commanded a US forces unit as an ADF officer, in the Iraq War.

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