Iain:
I saw those, too.
In addition:
http://law.bepress.com/cgi/viewcontent.cgi?article=1122&context=expresso194 Military history is “full of incidents in which a platoon or squad, having taken casualties at the enemy’s hands, finally
prevails.” OSIEL, supra note_, at 120. The proposition that soldiers engaged in a life-or-death struggle should be required,
immediately upon the indication of a desire to surrender on the part of their mortal enemies, to denature the emotions of rage and
fear that impel them forward and to stifle any thoughts of reprisal and revenge for the deaths of their comrades struck 19th and
early 20th century commentators, many of whom were acquainted with combat, as incompatible with reality:
During the heat of battle there is not much opportunity for . . . pity . . . The soldier’s training does not make him a
machine to such extent that he is a passive weapon. The noise of battle, the sight of the dead and dying, the feeling of
weariness after long hardships, may weaken his sense of fairness, and cause him to refuse to give quarter, and force his
adversary to drink from the bitter cup of Death, even after he has asked for mercy by surrendering.
t is often impracticable to grant quarter to troops who resist to the last moment. No war right of killing is recognized
in such circumstances; it is simply the necessity of war which justifies the refusal of quarter. It must often happen that
in the storing of a trench, when men’s blood is aboil and all is turmoil and confusion, many are cut down or bayoneted
who wish to surrender[.]
During World War I, several belligerents entered into bilateral agreements governing the status of
POWs, although few were ratified195 and most parties, including the U.S., accepted few if any legal
obligations.196 Although some belligerents recognized expanded customary duties, including the general
obligation to grant quarter,197 in either official policy statements or military manuals,198 most domestic
military legal systems retained explicit exceptions allowing the denial of quarter under categories of
circumstances, including military necessity and in reprisal,199 while others expressly ordered their military
forces to deny quarter in order to sow terror amongst their enemies.200 Moreover, as the very concept of
surrender remained as shameful to the martial mind as it was to the ancients,201 it was not difficult for
several belligerents to indoctrinate their armies, even if they did not issue direct orders, to neither grant
nor request quarter,202 nor was it unusual that units would make this decision independent of their
command structure.203 Throughout World War I, quarter was systematically denied as a standing tactical
procedure, in reprisal for perfidious surrenders and for posing as casualties only to resume combat,204 out
of vengeance,205 and out of alleged necessities, including avoidance of encumbrances.206
On balance, the reflections of commentators assessing the lessons of the “Great War” reinforced
the conclusion that the fabric of a martial custom favoring the grant of quarter continued to be woven
through with exceptions. Where rapidity and secrecy were paramount, such as in the case of a small force
occupying a strategic position in advance of a main body for whom disclosure of their purpose or
encumbrance by POWs would enhance the likelihood of their own destruction207 and compromise the
mission of the larger force,208 or where the exigencies of combat precluded the immediate extension of
protection to all those manifesting an intent to surrender,209 jurists conceded the legitimacy of military
necessity. Although a minority contended that the grant of quarter to persons rendered hors de combat
had reached the status of an absolute obligation from which soldiers were not permitted to derogate,210
most continued to view the grant of quarter through the prism of state practice, from which it appeared as
a custom-based privilege with respect to which the recipient could assert an entitlement only in the
absence of any military necessity that would move the grantor to deny it. In the interwar period,
humanitarians tried to harden this conditional custom into something more protective of soldiers hors de
combat, but the resulting Geneva Conventions of 1929, in some senses simply an expansion upon the
membership of their conventional predecessors, added little more than an additional declaration that
POWs were immune from reprisal and entitled to protection from the moment of capture.211
martial cultures of a number of militaries retained a disdain for the very concept of surrender.215 Thus, as
World War II erupted, the denial of quarter was condoned, whether explicitly or tacitly, by several
leading states, resulting in a round-robin of reprisals.216 Following their invasion of the Philippines,
Japanese troops drove, at bayonet point, over 40,000 Allied captives to their deaths on the Bataan Death
March (1942),217 a number exceeded by the Red Army after the Nazi defeat at Stalingrad (1943) after
which more than 105,000 German POWs were dispatched outright and on the march to gulags.218 German
forces repeatedly denied quarter to Allied troops,219 most notoriously at Malmedy during the Battle of the
Bulge (1944),220 and Allied soldiers reciprocated against Axis troops,221 including a mass execution of SS
camp guards during the liberation of Dachau (1945).222
...
The academic literature in the aftermath of World War II reveals that, despite the progressive
development of IHL and its normative influence upon eminent international lawyers, the martial code had
yet to be displaced as the lodestar guiding state practice. Although statements of absolutism with respect
to the quarter were working their way into some commentaries,231 scholars continued to recognize the
(A lot of references in the footnotes, my excerpts are NOT comprehensive)
See id. at 121-22 (“Troops sent on reconnoitering duties far in advance of the remainder of their forces, or who occupy an
important strategic point, a bridge, exploration of a forest, ravine, or a fortification which is the key to a position for the purposes
of holding until the main body of their forces arrive, must not be too considerate for any small group of the enemy which
frustrates such mission.).”
STEPHEN AMBROSE, CITIZEN SOLDIERS _ (2001) (reporting that the commander of the
101st Airborne Division, General Maxwell Taylor, ordered his troops to deny quarter to German soldiers during OVERLORD).
BRITISH HANDBOOK OF IRREGULAR WARFARE (1942)) (“Never give
the enemy a chance; the days when we could practice the rules of sportsmanship are over . . . Every soldier must be a potential
gangster . . . Remember you are out to kill.”).
267 See FOOKS, supra note_, at 121 n.2 (stating that, after the author, a British officer, came under fire from German
machinegunners who feigned surrender only to inflict heavy casualties before their subsequent capture, the U.S. captors marched
the German POWs before their advance to obtain a ceasefire from other German units).
Other resources:
War and Chivalry by Matthew Strickland
Face of Battle John Keegan (first place I encountered the "chum" terminology)
