The Pittsburgh Press (December 10, 1944)
Clare Luce doomed if captured; she fired howitzer right at Nazis!
Did Congressmen violate firing code? Lindbergh once faced same question
By Garnett D. Horner, North American Newspaper Alliance
Washington – (Dec. 9)
It appeared today that Reps. Clare Boothe Luce of Connecticut and Matthew Merritt of New York may have given the Germans an excuse to shoot them as “war criminals” if they should be captured.
Press dispatches from U.S. Third Army headquarters reported that Mrs. Luce and Mr. Merritt, members of the House Military Affairs Committee touring the European front, took a personal hand in the war by firing a 155mm howitzer at German installations.
Liable as war criminals
The *Rules of Land Warfare,” a 1940 War Department publication summarizing pertinent international law, provide (Chapter 11, Paragraph 348) that:
Persons who take up arms and commit hostilities without having complied with the conditions prescribed by the laws of war for recognition as belligerents are, when captured by the injured party, liable to punishment as war criminals.
The War Department here had “no comment whatever” on the reported Luce-Merritt incident.
Queries about the possible violation of the noncombat status of the Representatives brought from an unnamed military legal authority at Third Army headquarters a statement that the firing of a howitzer was “a demonstration for the House Committee, and, as such, could not be construed as actual combat.”
Gun pointed towards enemy
It was not disputed, however, that the howitzer fired by Reps. Luce and Merritt was pointing toward the enemy. The Germans might not choose to regard it as a “demonstration.”
In wartime, there are two general classes of people – the “armed forces” and the “peaceful population” – and “no person can belong to both classes at one and the same time,” according to the Army’s handbook on “Rules of Land Warfare.”
“Lawful belligerents” (Paragraph 9) are defined as members of armies, militia and volunteer corps, who confirm to certain conditions, such as being commanded by a responsible person; having a “distinctive emblem recognizable at a distance,” and carrying arms openly.
‘Unintentional violation’
“Unauthorized belligerents” (Paragraph 351) are those who, without being lawful belligerents, “nevertheless commit hostile acts of any kind.” If captured, “they have no right to be treated as prisoners of war,” but “may be brought to trial before a military commission or other tribunal, which may sentence them to death or such other punishment as it may consider proper.”
Not being members of the military, apparently these Representatives unintentionally violated the accepted code, according to an authority on the subject, L. Oppenheim, MA, LLD, formerly Whewell Professor of International Law in the University of Cambridge, and a member of the Institute of International Law. In his work, International Law, A Treatise, Volume 2, “Disputes, War and Neutrality,” Page 456, it is provided as follows:
Private individuals committing such acts (namely, hostilities against the enemy) do not enjoy the privileges of members of Armed Forces, and the enemy has, according to a customary rule of international law, the right to consider, and punish, such individuals as war criminals. Hostilities in arms committed by private individuals are war crimes, not because they really are violations of recognized rules regarding warfare, but because the enemy has the right to consider and punish them as acts of illegitimate warfare. The conflict between praiseworthy patriotism on the party of such individuals and the safety of the enemy troops does not allow of any solution.
Another kindred incident is the reported action of Charles A. Lindbergh in the Pacific as a civilian test pilot and instructor. According to an unconfirmed story, he shot down several Jap planes in combat, some accounts saying the total being 10 or 12, others fewer.
Fired in self-defense
However, in the case of Mr. Lindbergh there is an explanation that goes with the story which would warrant his combat accomplishment. He was engaged in a practice flight with some of his pupils when the formation was attacked by Jap planes, and it was necessary for Mr. Lindbergh as well as the others to fight to save themselves.
Mr. Lindbergh was formerly a colonel in the U.S. Army Air Corps Reserves but resigned his commission April 28, 1941. In a letter to President Roosevelt, he explained he was retiring because he was offended by remarks made by the President at his press conference. On that occasion, the President put Mr. Lindbergh in the category of defeatists and appeasers.