Still murdering prisoners does not seem to be a good idea without a trial.
It is fully legal under the Gevena Convention and Hague. Spies or assassains may be summarily executed. Historically, this has always been the case. While I agree that spies might be of useful value as a potential informant or double agent, executing a member of a foreign military sent to execute police officers and/or their families is not distasteful.
The gentleman being shot in the photo was a enemy officer of foreign hostile nation at war with the nation he was captured. He was acting as a spy and sent to specifically create atrocities.
Sorry, have to disagree. This has
never been the case-although it has happened in practice, just like other crimes.
Spies and assassins are stripped of the immunities given to soldiers-a soldier in uniform cannot be tried for murder, for example, even if he engages in conduct that would be murder under a criminal statute (hiding in the bushes and shooting someone else, for example.)
Spies and assassins, at least in legal theory, are simply subject to whatever the criminal law happens to be where they are. If there are laws against espionage and murder, they get whatever the prescribed punishment is for those crimes. That has always been the rule-"summary execution" makes the fact finder, judge, and executioner all the same person, and reduces the process needed to justify a killing to one man's say so. These are things that have never been a feature of the Continental/English legal systems.
I think I have to disagree with your disagreement. At least in part.
At least insofar as the Geneva Conventions are concerned, I think the NVA (he was
not Viet Cong) neatly eliminated himself from their purview when he took off his uniform. Let's look at it. Convention #3 deals with prisoners of war. Convention #4 deals with civilians.
Prisoners of war are:
Art 4. A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:
(1) Members of the armed forces of a Party to the conflict, as well as members of militias or volunteer corps forming part of such armed forces.
(2) Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:
(a) that of being commanded by a person responsible for his subordinates;
(b) that of having a fixed distinctive sign recognizable at a distance;
(c) that of carrying arms openly;
(d) that of conducting their operations in accordance with the laws and customs of war.
I think we can probably agree that the NVA was not operating in accordance with at least prerequisites (2)(b) and (2)(d). Ergo, he was not a "prisoner of war" within the purview of Convention #3.
Moving on to Convention #4, which deals with civilians under enemy control, we find the following:
Art. 3. In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following
provisions:
(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.
To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(b) taking of hostages;
(c) outrages upon personal dignity, in particular humiliating and degrading treatment;
(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.
The NVA was clearly taking an active part in the hostilities, and thus would not be covered under the purview of the above portion of Convention #4. However, Convention #4 later specifically addresses spies:
Art. 5 Where in the territory of a Party to the conflict, the latter is satisfied that an individual protected person is definitely suspected of or engaged in activities hostile to the security of the State, such individual person shall not be entitled to claim such rights and privileges under the present Convention as would, if exercised in the favour of such individual person, be prejudicial to the security of such State.
Where in occupied territory an individual protected person is detained as a spy or saboteur, or as a person under definite suspicion of activity hostile to the security of the Occupying Power, such person shall, in those cases where absolute military security so requires, be regarded as having forfeited rights of communication under the present Convention.
In each case, such persons shall nevertheless be treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial prescribed by the present Convention. They shall also be granted the full rights and privileges of a protected person under the present Convention at the earliest date consistent with the security of the State or Occupying Power, as the case may be.
This appears to say that spies may be detained under such circumstances and conditions as the "occupying power" (in other words, the captor) deems necessary to protect its own security -- but it doesn't appear to support summary execution. It appears to require a "fair and regular" trial at the earliest practicable date. It does not seem to require or provide, however, that the trial be conducted by or under the civilan laws of the country/jurisdiction in which the capture is effected. With the usual IANAL disclaimer, it doesn't appear to me that the Convention precludes subjecting a spy or saboteur to a military trial.
