Summary execution

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Nguyen Ngoc Loan summarily executes Viet Cong Captain Nguyen Van Lem in Saigon during the Tet Offensive in 1968. Execution of Nguyen Van Lem.jpg
Nguyễn Ngọc Loan summarily executes Viet Cong Captain Nguyễn Văn Lém in Saigon during the Tet Offensive in 1968.

In civil and military jurisprudence, summary execution is the putting to death of a person accused of a crime without the benefit of a free and fair trial. The term results from the legal concept of summary justice to punish a summary offense, as in the case of a drumhead court-martial, but the term usually denotes the summary execution of a sentence of death. Under international law, it is a combatant's refusal to accept an opponent's lawful surrender and the combatant's provision of no quarter, by killing the surrendering opponents.


Summary executions have been practiced by police, military, and paramilitary organizations and are frequently associated with guerrilla warfare, counter-insurgency, terrorism, and any other situation which involves a breakdown of the normal procedures for handling accused prisoners, civilian or military.

Military jurisdiction

This painting, The Third of May 1808 by Francisco Goya, depicts the summary execution of Spaniards by French forces after the Dos de Mayo Uprising in Madrid. El Tres de Mayo, by Francisco de Goya, from Prado thin black margin.jpg
This painting, The Third of May 1808 by Francisco Goya, depicts the summary execution of Spaniards by French forces after the Dos de Mayo Uprising in Madrid.

Under military law, summary execution is illegal in almost all circumstances, as a military tribunal would be the competent judge needed to determine guilt and declare a sentence of death. However, there are certain exceptions to this rule in emergencies and warfare where summary execution is legal.

Prisoners of war

Major treaties such as the Geneva Conventions and Hague Conventions, and customary international law from history, protect the rights of captured regular and irregular enemy soldiers, along with civilians of enemy states. Prisoners-of-war (POWs) must be treated in carefully defined ways which definitively ban summary execution, as the Second Additional Protocol of the Geneva Conventions (1977) states:

No sentence shall be passed and no penalty shall be executed on a person found guilty of an offence except pursuant to a conviction pronounced by a court offering the essential guarantees of independence and impartiality.

Second Protocol of the Geneva Conventions (1977), Article 6.2

Exceptions to prisoners-of-war status

However, some classes of combatants may not be accorded POW status, but that definition has broadened to cover more classes of combatants over time. In the past, summary execution of pirates, spies, and francs-tireurs [1] have been performed and considered legal under existing international law. [2] Francs-tireurs (a term originating in the Franco-Prussian War) are enemy civilians or militia who continue to fight in territory occupied by a warring party and do not wear military uniforms, and may otherwise be known as guerrillas, partisans, insurgents, etc. Though they could be legally jailed or executed by most armies a century ago, the experience of World War II influenced nations occupied by foreign forces to change the law to protect this group. Many of the post-war victors, such as France, Poland, and the USSR, had the experience of resistance fighters being summarily executed by the Axis if they were captured. The war also influenced them to make sure that commandos and other special forces who were caught deep behind enemy lines would be protected as POWs, rather than summarily executed as Hitler decreed through his 1942 Commando Order.

Polish people being executed by a German firing squad in Kornik, October 1939 Bundesarchiv Bild 146-1968-034-19A, Exekution von polnischen Geiseln.jpg
Polish people being executed by a German firing squad in Kórnik, October 1939
The execution of 56 Polish citizens in Bochnia, near Krakow, during German occupation of Poland, December 18, 1939, in a reprisal for an attack on a German police office two days earlier by the underground organization "White Eagle" The Bochnia massacre German-occupied Poland 1939.jpg
The execution of 56 Polish citizens in Bochnia, near Kraków, during German occupation of Poland, December 18, 1939, in a reprisal for an attack on a German police office two days earlier by the underground organization "White Eagle"

The Commando Order was issued by Adolf Hitler on October 18, 1942, stating that all Allied commandos encountered by German forces in Europe and Africa should be killed immediately without trial, even in proper uniforms or if they attempted to surrender. Any commando or small group of commandos or a similar unit, agents and saboteurs not in proper uniforms who fell into the hands of the German military forces by some means other than direct combat (through the police in occupied territories, for instance) were to be handed over immediately to the Sicherheitsdienst (SD, Security Service). The order, which was issued in secret, made it clear that failure to carry out such orders by any commander or officer would be considered to be an act of negligence punishable under German military law. [3] This was in fact the second "Commando Order", [4] the first being issued by Generalfeldmarschall Gerd von Rundstedt on July 21, 1942, stipulating that parachutists should be handed over to the Gestapo. [5] Shortly after World War II, at the Nuremberg Trials, the Commando Order was found to be a direct breach of the laws of war, and German officers who carried out illegal executions under the Commando Order were found guilty of war crimes.

According to Article 4 of the Third Geneva Convention of 1949, irregular forces are entitled to prisoner of war status if they are commanded by a person responsible for the subordinates, have a fixed distinctive sign recognizable at a distance, carry arms openly, and conduct their operations in accordance with the laws and customs of war. If they do not meet all of those conditions, they may be considered francs-tireurs (in the original sense of "illegal combatant") and punished as criminals in a military jurisdiction, which may include summary execution.

Soldiers who are wearing uniforms of the opposing army after the start of combat may be considered illegal combatants and subject to summary execution. Many armies have performed that kind of false flag ruse in the past, including both German and US special forces during World War II. However, if soldiers remove their disguises and put on proper insignia before the start of combat in such an operation, they are considered legal combatants and must be treated as prisoners of war (POWs) if captured. That distinction was settled by a military tribunal in the postwar trial of Otto Skorzeny, who led Operation Greif, an infiltration mission in which German commandos wore US uniforms to infiltrate US lines during the Battle of the Bulge. [6]

Under martial law

Within a state's policy, martial law may be declared in emergencies such as invasions or insurrections, and in such a case constitutionally protected rights would be suspended. Depending on a state's interpretation of martial law, this may allow police or military forces to decide and carry out punishments that include death on its own citizens, in order to restore lawful authority or for other vital reasons.

That would not include killing a suspect who is directly endangering another's life, which is always legal for police, but executing a suspect under one's control as a punishment. Proving that a summary execution fell under the legal exception would be exceptionally difficult, as one would have to show why a judgment and sentence of death absolutely needed to be meted out on the spot. Hence, such extraordinary acts are almost always seen as illegal violations of human rights.

See also

Related Research Articles

<span class="mw-page-title-main">Prisoner of war</span> Military term for a captive of the enemy

A prisoner of war (POW) is a person who is held captive by a belligerent power during or immediately after an armed conflict. The earliest recorded usage of the phrase "prisoner of war" dates back to 1610.

<span class="mw-page-title-main">War crime</span> Individual act constituting a violation of the laws of war

A war crime is a violation of the laws of war that gives rise to individual criminal responsibility for actions by combatants in action, such as intentionally killing civilians or intentionally killing prisoners of war, torture, taking hostages, unnecessarily destroying civilian property, deception by perfidy, wartime sexual violence, pillaging, and for any individual that is part of the command structure who orders any attempt to committing mass killings including genocide or ethnic cleansing, the granting of no quarter despite surrender, the conscription of children in the military and flouting the legal distinctions of proportionality and military necessity.

<span class="mw-page-title-main">Unlawful combatant</span> Person who engages in armed conflict in violation of the laws of war

An unlawful combatant, illegal combatant or unprivileged combatant/belligerent is a person who directly engages in armed conflict in violation of the laws of war and therefore is claimed not to be protected by the Geneva Conventions. The International Committee of the Red Cross points out that the terms "unlawful combatant", "illegal combatant" or "unprivileged combatant/belligerent" are not defined in any international agreements. While the concept of an unlawful combatant is included in the Third Geneva Convention, the phrase itself does not appear in the document. Article 4 of the Third Geneva Convention does describe categories under which a person may be entitled to prisoner of war status. There are other international treaties that deny lawful combatant status for mercenaries and children.

<span class="mw-page-title-main">Law of war</span> International regulations of warfare

The law of war is the component of international law that regulates the conditions for initiating war and the conduct of hostilities. Laws of war define sovereignty and nationhood, states and territories, occupation, and other critical terms of law.

<span class="mw-page-title-main">Combatant</span> Person who takes a direct part in the hostilities of an armed conflict

Combatant is the legal status of a person entitled to directly participate in hostilities during an armed conflict, and may be intentionally targeted by an adverse party for their participation in the armed conflict. Combatants are not afforded immunity from being directly targeted in situations of armed conflict and can be attacked regardless of the specific circumstances simply due to their status, so as to deprive their side of their support.

<span class="mw-page-title-main">Non-combatant</span> Person who does not take a direct part in hostilities during war

Non-combatant is a term of art in the law of war and international humanitarian law to refer to civilians who are not taking a direct part in hostilities; persons, such as combat medics and military chaplains, who are members of the belligerent armed forces but are protected because of their specific duties ; combatants who are placed hors de combat; and neutral persons, such as peacekeepers, who are not involved in fighting for one of the belligerents involved in a war. This particular status was first recognized under the Geneva Conventions with the First Geneva Convention of 1864.

The Commando Order was issued by the OKW, the high command of the German Armed Forces, on 18 October 1942. This order stated that all Allied commandos captured in Europe and Africa should be summarily executed without trial, even if in proper uniforms or if they attempted to surrender. Any commando or small group of commandos or a similar unit, agents, and saboteurs not in proper uniforms who fell into the hands of the German forces by some means other than direct combat, were to be handed over immediately to the Sicherheitsdienst for immediate execution.

<i>Francs-tireurs</i> French volunteers who carried on a guerilla warfare against the Germans in the Franco-German War

Francs-tireurs were irregular military formations deployed by France during the early stages of the Franco-Prussian War (1870–71). The term was revived and used by partisans to name two major French Resistance movements set up to fight against the Nazi Germany during World War II.

<span class="mw-page-title-main">Anton Dostler</span> German general

Anton Dostler was a German army officer who fought in both World Wars. During World War II, he commanded several units as a General of the Infantry, primarily in Italy. After the Axis defeat, Dostler was executed for war crimes—specifically, ordering the execution of fifteen American prisoners of war in March 1944 during the Italian Campaign.

<span class="mw-page-title-main">Hostages Trial</span> 1947–8 war crimes trial in Nuremberg, Germany

The Hostages Trial was held from 8 July 1947 until 19 February 1948 and was the seventh of the twelve trials for war crimes that United States authorities held in their occupation zone in Germany in Nuremberg after the end of World War II. These twelve trials were all held before US military courts, not before the International Military Tribunal, but took place in the same rooms at the Palace of Justice. The twelve US trials are collectively known as the "Subsequent Nuremberg Trials" or, more formally, as the "Trials of War Criminals before the Nuremberg Military Tribunals" (NMT).

A military prison is a prison operated by a military. Military prisons are used variously to house prisoners of war, unlawful combatants, those whose freedom is deemed a national security risk by the military or national authorities, and members of the military found guilty of a serious crime. There are two types: penal and confinement-oriented, where captured enemy combatants are confined for military reasons until hostilities cease. Most militaries have some sort of military police unit operating at the divisional level or below to perform many of the same functions as civilian police, from traffic-control to the arrest of violent offenders and the supervision of detainees and prisoners of war.

Enemy combatant is a term for a person who, either lawfully or unlawfully, engages in hostilities for the other side in an armed conflict, used by the U.S. government and media during the War on Terror. Usually enemy combatants are members of the armed forces of the state with which another state is at war. In the case of a civil war or an insurrection "state" may be replaced by the more general term "party to the conflict".

Competent Tribunal is a term used in Article 5 paragraph 2 of the Third Geneva Convention, which states:

Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.

In the context of war, perfidy is a form of deception in which one side promises to act in good faith with the intention of breaking that promise once the unsuspecting enemy is exposed.

<span class="mw-page-title-main">Detention (imprisonment)</span> Process whereby a state or private citizen lawfully holds a person, removing their freedom

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There are differences from one country to another regarding the definition of Japanese war crimes. War crimes have been broadly defined as violations of the laws or customs of war, which involves acts using prohibited weapons, violating battlefield norms while engaging in combat with the enemy combatants, or against protected persons, including enemy civilians and citizens and property of neutral states as in the case of the attack on Pearl Harbor. Military personnel from the Empire of Japan have been accused and/or convicted of committing many such acts during the period of Japanese imperialism from the late 19th to mid-20th centuries. They have been accused of conducting a series of human rights abuses against civilians and prisoners of war (POWs) throughout east Asia and the western Pacific region. These events reached their height during the Second Sino-Japanese War of 1937–45 and the Asian and Pacific campaigns of World War II (1941–45).

<span class="mw-page-title-main">German military law</span>

German military law has a long history.

<span class="mw-page-title-main">Geneva Conventions</span> International treaties of war

The Geneva Conventions are international humanitarian laws consisting of four treaties and three additional protocols that establish international legal standards for humanitarian treatment in war. The singular term Geneva Convention colloquially denotes the agreements of 1949, negotiated in the aftermath of the Second World War (1939–1945), which updated the terms of the two 1929 treaties and added two new conventions. The Geneva Conventions extensively define the basic rights of wartime prisoners, civilians and military personnel; establish protections for the wounded and sick; and provide protections for the civilians in and around a war-zone.

Operation Greif was a special operation commanded by Waffen-SS commando Otto Skorzeny during the Battle of the Bulge in World War II. The operation was the brainchild of Adolf Hitler, and its purpose was to capture one or more of the bridges over the Meuse river before they could be destroyed. German soldiers, wearing captured British and U.S. Army uniforms and using captured Allied vehicles, were to cause confusion in the rear of the Allied lines. A lack of vehicles, uniforms and equipment limited the operation and it never achieved its original aim of securing the Meuse bridges. Skorzeny's post-war trial set a precedent clarifying article 4 of the Geneva Convention: as the German soldiers removed the Allied uniforms before engaging in combat, they were not to be considered francs-tireurs.


The Freischar was the German name given to an irregular, volunteer military unit that, unlike regular or reserve military forces, participated in a war without the formal authorisation of one of the belligerents, but on the instigation of a political party or an individual. A Freischar deployed against a foreign enemy was often called a Freikorps. The term Freischar has been commonly used in German-speaking Europe since 1848. The members of a Freischar were called Freischärler. As early as 1785 Johann von Ewald published in Kassel his Essay on Partisan Warfare, which described his experiences with the rebels in the North American colonies.


  1. Ticehurst R (1997-04-30). The Martens clause and the laws of armed conflict. Int Rev RC #317, @ pp 125–134. Seen 2010-06-30.
  2. Law Of The Sea.
  3. USGPO Translation of order, UK: UWE, archived from the original on 2007-06-18
  4. "The Commando Order", History learning site, UK
  5. CAB/129/28, British National Archives, ... under which parachutists who were taken prisoner not in connection with battle actions were to be transferred to the Gestapo by whom they were, in fact, killed.
  6. Gary D. Solis (15 February 2010). The Law of Armed Conflict: International Humanitarian Law in War. Cambridge University Press. p. 432. ISBN   978-0-5218-7088-7.