In civil and military jurisprudence,summary execution is the putting to death of a person accused of a crime without the benefit of afree and fair trial.[1][2] The term results from the legal concept of summary justice to punish asummary offense, as in the case of adrumhead court-martial, but the term usually denotes thesummary execution of asentence of death. Under international law, it is defined as a combatant's refusal to accept an opponent's lawful surrender and the combatant's provision ofno quarter, by killing the surrendering opponents.
Summary executions have been practiced by governments and paramilitary organizations during both peacetime and war, and is usually associated withwar crimes andpolitical persecution.[3][4]
Major treaties such as theGeneva Conventions andHague Conventions, andcustomary international law protect the rights of capturedregular orirregular enemy soldiers andcivilians.Prisoners-of-war (POWs) must be treated in carefully defined ways which definitively ban summary execution, as theSecond 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
However, some classes ofcombatants may not be accorded POW status, but that definition has broadened to cover more classes of combatants over time. In the past, summary execution ofpirates,spies, andfrancs-tireurs[5] have been performed and considered legal under existing international law.[6] Francs-tireurs (a term originating in theFranco-Prussian War) are enemy civilians ormilitia who continue to fight in territory occupied by a warring party and do not wear military uniforms, and may otherwise be known asguerrillas,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 theAxis if they were captured. The war also influenced them to make sure thatcommandos 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 1942Commando Order.
The Commando Order was issued byAdolf Hitler on October 18, 1942, stating that allAlliedcommandos 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 andsaboteurs 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 theSicherheitsdienst (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.[7] This was in fact the second "Commando Order",[8] the first being issued by GeneralfeldmarschallGerd von Rundstedt on July 21, 1942, stipulating that parachutists should be handed over to theGestapo.[9] Shortly after World War II, at theNuremberg Trials, the Commando Order was found to be a direct breach of thelaws of war, and German officers who carried out illegal executions under the Commando Order were found guilty ofwar crimes.
Soldiers who are wearing uniforms of the opposing armyafter the start of combat may be considered illegal combatants and subject to summary execution. Many armies have performed that kind offalse flag ruse, including both German and USspecial forces during World War II. However, if soldiers remove their disguises and put on proper insigniabefore the start of combat in such an operation, they are legal combatants and must be treated asprisoners of war (POWs) if captured. That distinction was settled by a military tribunal in the postwar trial ofOtto Skorzeny, who ledOperation Greif, an infiltration mission in which German commandos wore US uniforms to infiltrate US lines during theBattle of the Bulge.[10]
... 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.
