British soldiers executed under Hitler’s Commando order — legal or illegal?

This quote, from Wikipedia, gives the full text of Hitler’s Commando Order:

On October 18 after much deliberation by High Command lawyers, officers and staff, Hitler issued his Commando Order or Kommandobefehl in secret, with only 12 copies. The following day Army Chief of Staff Alfred Jodl distributed copies with an appendix stating that the order was “intended for commanders only and must not under any circumstances fall into enemy hands.” The order itself stated that

1. For a long time now our opponents have been employing in their conduct of the war, methods which contravene the International Convention of Geneva. The members of the so-called Commandos behave in a particularly brutal and underhand manner; and it has been established that those units recruit criminals not only from their own country but even former convicts set free in enemy territories. From captured orders it emerges that they are instructed not only to tie up prisoners, but also to kill out-of-hand unarmed captives who they think might prove an encumbrance to them, or hinder them in successfully carrying out their aims. Orders have indeed been found in which the killing of prisoners has positively been demanded of them.

2. In this connection it has already been notified in an Appendix to Army Orders of 7.10.1942. that in future, Germany will adopt the same methods against these Sabotage units of the British and their Allies; i.e. that, whenever they appear, they shall be ruthlessly destroyed by the German troops.

3. I order, therefore:— From now on all men operating against German troops in so-called Commando raids in Europe or in Africa, are to be annihilated to the last man. This is to be carried out whether they be soldiers in uniform, or saboteurs, with or without arms; and whether fighting or seeking to escape; and it is equally immaterial whether they come into action from Ships and Aircraft, or whether they land by parachute. Even if these individuals on discovery make obvious their intention of giving themselves up as prisoners, no pardon is on any account to be given. On this matter a report is to be made on each case to Headquarters for the information of Higher Command.

4. Should individual members of these Commandos, such as agents, saboteurs etc., fall into the hands of the Armed Forces through any means – as, for example, through the Police in one of the Occupied Territories – they are to be instantly handed over to the SD

To hold them in military custody – for example in P.O.W. Camps, etc., – even if only as a temporary measure, is strictly forbidden.

5. This order does not apply to the treatment of those enemy soldiers who are taken prisoner or give themselves up in open battle, in the course of normal operations, large scale attacks; or in major assault landings or airborne operations. Neither does it apply to those who fall into our hands after a sea fight, nor to those enemy soldiers who, after air battle, seek to save their lives by parachute.

6. I will hold all Commanders and Officers responsible under Military Law for any omission to carry out this order, whether by failure in their duty to instruct their units accordingly, or if they themselves act contrary to it.[8]

In other words, Hitler became enraged by the actions of the British Commandos and decided to fight fire with fire.  The British were affronted by this.  The British thought they should have been allowed to fight illegally.  In fact, the SOE agents WERE allowed to fight illegally and most of them were not executed after they were caught. Still, they groused about being sent to a concentration camp, instead of a POW camp.

In 2002, I visited the Sachsenhausen Memorial Site for the 2nd time.  The layout of the Memorial Site has changed since then, but in 2002 there was a path, up to the Museum, which was lined with memorial stones.

Entrance road at Sachsenhausen Memorial Site in 2002

I photographed some of the memorials along the entrance road, shown in the photo above, but not the flat stone, which was put on the ground, beside the path, in remembrance of some British commandos who were executed at Sachsenhausen, under Hitler’s Commando order.

Memorial stone in honor of British soldiers who were executed at Sachsenhausen

In 2002, I wrote, on my scrapbookpages.com website, regarding the memorial stone above:

[There] is another small memorial stone to the British spies who were captured and executed at Sachsenhausen.

This morning, I received an e-mail from a man who objected to my use of the word “spies.”  He pointed out that these were British soldiers, all of whom had a military rank beside their names.  This indicates that they were soldiers, not spies. He wrote that these men were Commandos who had been illegally executed under Hitler’s famous Commando Order.

Plaque at Mauthausen Memorial Site in honor of British commandos who were executed

List of British agents who were executed at Mauthausen

The memorial plaque, shown in the photo above, is located on the wall in the narrow space behind the building where the gas chamber is located at the Mauthausen Memorial Site. The plaque is in honor of 47 British and Dutch “special agents” who had parachuted into German occupied territory and had been caught behind enemy lines, dressed in civilian clothes.

Was it legal to execute these “special agents”?  Not according to the British.

Both sides used Commandos during World War II.  The photo below shows Otto Skorzany, the famous German Commando.  Skorzeny and his men were brought before the American Military Tribunal at Dachau and prosecuted as war criminals. So wouldn’t the British commandos also have been “war criminals” who could have been legally executed?   No, only the Germans were “war criminals” in World War II.  After the war, the Allies made up ex-post-facto laws that made virtually every German guilty of a war crime.

Otto Skorzany, famous German Commando

Otto Skorzeny, shown in the photo above, was acquitted after the presiding judge at his AMT trial allowed testimony that the American military had committed the same crime of wearing enemy uniforms during the Battle of the Bulge. Although he was acquitted, Skorzeny was still held in prison after the verdict; he finally escaped and fled to South America.

This quote, regarding Hitler’s Commando Order is from Wikipedia:

The Commando Order was invoked to order the death of an unknown number of Allied special operations forces and behind-the-lines operators of the OSS, SOE, and other special forces elements.[citation needed] “Commandos” of these types captured were turned over to German security and police forces and transported to concentration camps for execution. The Gazette citation reporting the awarding of the G.C. to Yeo-Thomas describes this process in detail.

The first victims were seven officers of Operation Musketoon, who were shot in Sachsenhausen on the morning of 23 October 1942.

In November 1942, British survivors of Operation Freshman were executed.

[…]

In 1945, Jack Taylor and the Dupont mission were captured by the men of Gestapo agent Johann Sanitzer. Sanitzer asked the RSHA for instructions on a possible deal that Taylor proposed, but Kaltenbrunner’s staff reminded him “of Hitler’s edict that all captured officers attached to foreign missions were to be executed”.[14] Taylor was convicted of espionage, though he claimed to be an ordinary soldier. He was sent to Mauthausen. He survived, barely, but gathered evidence and was eventually a witness at the war crimes trials.[a]

Jack Taylor was sent to Mauthausen under the Commando Order, but he was not executed

War Crimes

The laws of war as accepted by all civilized countries in 1942 were unequivocal on this point: “….it is especially forbidden….to declare that no quarter will be given”. This was established under Article 23 (d) of the 1907 Hague Convention IV – The Laws and Customs of War on Land.[16] The Geneva Convention of 1929, that Germany had ratified, defined who should be considered a prisoner of war on capture — that included enemy soldiers in uniforms — and how they should be treated. While at the time under both the Hague and Geneva Conventions, it was legal to execute “spies and saboteurs” disguised in civilian clothes[17][18] or uniforms of the enemy,[19][20] insofar as the Commando Order applied to soldiers in proper uniforms,[21] it was in direct and deliberate violation of both the customary laws of war and Germany’s treaty obligations.[b] The execution of Allied commandos without trial was also a violation of Article 30 of the 1907 Hague Convention IV – The Laws and Customs of War on Land, provided that: “A spy taken in the act shall not be punished without previous trial.”[16] This provision only includes soldiers caught behind enemy lines in disguises, and not those wearing proper uniforms. Soldiers in proper uniforms cannot be punished for being lawful combatants and must be treated as prisoners of war upon capture, except those disguised in civilian clothes or uniforms of the enemy behind enemy lines.[19][23][24]

The fact that Hitler’s staff took special measures to keep the Order secret, including the limitation of its printing to only twelve copies, strongly suggests that they knew it to be illegal.[25]

[..]

After the war, German officers who carried out executions under the Commando Order were found guilty at war crimes trials, including the Nuremberg Trials.

General Anton Dostler, who had ordered the execution of 15 American soldiers of the Ginny II operation in Italy, was sentenced to death and executed in December 1945. His defense, that he had only relayed superior orders, was rejected at trial.

The Commando Order was one of the specifications in the charge against Generaloberst Jodl, who was convicted and hanged. Another officer charged with enforcing the Commando Order at Nuremberg was the Commander of the Navy Erich Raeder. Under cross-examination, Raeder admitted to passing on the Commando Order to the Kriegsmarine and to enforcing the Commando Order by ordering the summary execution of two captured British Royal Marines after the Operation Frankton raid at Bordeaux in December 1942.[28]

When American soldiers arrived at Mauthausen to liberated the camp in May 1945, they were greeted by 37-year-old Lt. Jack H. Taylor, a Commando in the United States Navy, who had been captured after leading a sabotage mission behind enemy lines. Lt. Taylor had been a prisoner at Mauthausen for only 35 days; he had arrived in the camp on April 1, 1945, after being transferred from a Gestapo prison in Vienna because Soviet troops were 50 kilometers from the city and advancing rapidly.

Lt. Taylor was not executed by the Germans, even though his sabotage mission behind enemy lines came under Hitler’s Commando order.  If the war had lasted longer, could he have been legally executed?

This quote is from Wikipedia:

The Commando Order was issued by Adolf Hitler on 18 October 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 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 these orders by any commander or officer would be considered to be an act of negligence punishable under German military law.[1] This was in fact the second “Commando Order”,[2] the first being issued by Generalfeldmarschall Gerd von Rundstedt on 21 July 1942, stipulating that parachutists should be handed over to the Gestapo.[3] 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.

[…]
The Commando Order mentioned violations of the Geneva Conventions by Allied commando troops and cites these violations as justification for the order. It is widely believed that occurrences at Dieppe and on a small raid on the Channel Island of Sark by the Small Scale Raiding Force (with some men of No. 12 Commando) brought Hitler’s rage to a head.