In my "other job" I was part of a research project to respond to a query regarding any possible justification of the Swiss armed forces to shoot down an Allied aircraft during WW II, and why such an action was not considered a "hostile act" that was a violation of Neutrality.

The legal justification is found in International Law recognized by the Geneva Convention.

I found the research fascinating, and thought I would summarize the response here.

Background: At the end of WW I, the Washington Conference on the Limitations of Armaments in 1921 established the "Commission of Jurists." Delegations from six countries (Great Britain, France, Italy, Japan, the Netherlands, and the United States) met at The Hague during the period from 11 DEC 1922 to 19 FEB 1923. The Commission wrote "The Hague Rules of Air Warfare" a highly organized, comprehensive code for control of aviation in warfare (62 articles). 

Chapter VI of The Hague Rules of Air Warfare deals with "Belligerent Duties Towards Neutral States and Neutral Duties Towards Belligerent States." 

While both the Allies and Axis Powers foreswore to adhere to its precepts, the U.S. never officially ratified the Hague Rules of Air Warfare section of the document because of the isolationist political climate of the 1930's. In context of the times, it didn't particularly matter because it was understood in the U.S. had already agreed to comply with expectations of Geneva Convention, which "blessed" the Commission of Jurists report that included the Hague Rules of Air Warfare.

ARTICLE XXXIX: Belligerent aircraft are bound to respect the rights of neutral Powers and to abstain within the jurisdiction of a neutral State from the commission of any act which it is the duty of that neutral State to prevent.

ARTICLE XL: Belligerent military aircraft are forbidden to enter the jurisdiction of a neutral State.

ARTICLE XLI: Aircraft on board vessels of war, including aircraft-carriers, shall be regarded as part of such vessels.

ARTICLE XLII: A neutral government must use the means at its disposal to prevent the entry within its jurisdiction of belligerent military aircraft and to compel them to alight if they have entered such jurisdiction.

A neutral government shall use the means at its disposal to intern any belligerent military aircraft which is within its jurisdiction after having alighted for any reason whatsoever, together with its crew and the passengers, if any.

ARTICLE XLIII: The personnel of a disabled belligerent military aircraft rescued outside neutral waters and brought into the jurisdiction of a neutral State by a neutral military aircraft and there landed shall be interned.

ARTICLE XLIV: The supply in any manner, directly or indirectly, by a neutral government to a belligerent Power of aircraft, parts of aircraft, or material, supplies or munitions required for aircraft is forbidden.

ARTICLE XLV: Subject to the provisions of Article XLVI, a neutral Power is not bound to prevent the export or transit on behalf of a belligerent of aircraft, parts of aircraft, or material, supplies or munitions for aircraft.

ARTICLE XLVI: A neutral government is bound to use the means at its disposal:

1. to prevent the departure from its jurisdiction of an aircraft in a condition to make a hostile attack against a belligerent Power, or carrying or accompanied by appliances or materials the mounting or utilisation of which would enable it to make a hostile attack, if there is reason to believe that such aircraft is destined for use against a belligerent Power.
2. to prevent the departure of an aircraft the crew of which includes any member of the combatant forces of a belligerent Power.
3. to prevent work upon an aircraft designed to prepare it to depart in contravention of the purpose of this article.

On the departure by air of any aircraft despatched by persons or companies in neutral jurisdiction to the order of a belligerent Power, the neutral government must prescribe for such aircraft a route avoiding the neighbourhood of the military operations of the opposing belligerent, and must exact whatever guarantees may be required to ensure that the aircraft follows the route prescribed.

ARTICLE XLVII: A neutral State is bound to take such steps as the means at its disposal permit to prevent within its jurisdiction aerial observation of the movements, operations or defences of one belligerent, with the intention of informing the other belligerent.

ARTICLE XLVIII: The action of a neutral Power in using force or other means at its disposal in the exercise of its lights or duties under these rules cannot be regarded as a hostile act.

The Swiss were determined to adhere strictly to the international rules governing belligerent aircraft and internees, largely because they were under constant threat of invasion by the Nazis. For a nation that professed neutrality, particularly one surrounded completely by the Axis powers like Switzerland, any hint of impartiality toward the Allies could have incurred dire consequences.

The Swiss government’s policy toward adherence to the international rules of neutrality was clearly illustrated by the fact that several USAAF bombers attempting to land in Switzerland were attacked by Swiss fighters and anti-aircraft weapons. Once in the custody of the Swiss government, air crew members were considered “internees.” Internees are treated almost identically to POWs under the laws of war, excepting that by international law an internee is held in a neutral state. Some other Allied and Axis soldiers entered Switzerland by foot, for which they earned the status of “evadee.”

• Evadees were not kept in camps, and could come and go as they pleased.
• Internees were usually restricted to a specific area and kept under guard. Interned air crews who violated the rules of internship (examples: attempted escape, violation of Swiss civil laws) were stripped of internee status and  punished, sometimes severely.

Swiss authorities justified shooting at belligerent aircraft and punishing attempted escapes as expectations of a neutral power under Hague Rules of Air Warfare:

1. Article XLVI: A neutral government is bound to use the means at its disposal .... to prevent the departure of an aircraft the crew of which includes any member of the combatant forces of a belligerent Power.
2. Article XLVIII: The action of a neutral Power in using force or other means at its disposal in the exercise of its lights or duties under these rules cannot be regarded as a hostile act.

CPT(VT) W.P. Sullivan
HQ Company - Asst G-3
Camp Johnson, VT

___‹(•¿•)›____
Kilroy was here

Cpt. Sullivan -
Interesting .
However ,  There were too many instances of Swiss Fighters
and AA shooting down Bombers that were clearly trying to
Land. They had severe Battle Damage , Engines feathered ,
On Fire , Wheels Down etc. This was Overkill by Swiss.
Also - Incarcerating Internees in Prisons like Wauwilermoos
was uncalled for. They were treated worse than American POWs
in Germany and German POWs in U.S. !!!!
On top of this , the Swiss demanded and got over 14 Million Dollars
from the U.S. for " taking care " of Internees. !!!
Mike
 

"Interned air crews who violated the rules of internship (examples: attempted escape, violation of Swiss civil laws) were stripped of internee status and  punished, sometimes severely."

According to the Geneva Convention, dated July 27, 1929:

ARTICLE 56.

In no case may prisoners of war be transferred to penitentiary establishments (prisons, penitentiaries, convict prisons, etc.) there to undergo disciplinary punishment.
The quarters in which they undergo disciplinary punishment shall conform to sanitary requirements.
Prisoners punished shall be enabled to keep themselves in a state of cleanliness.
These prisoners shall every day be allowed to exercise or to stay m the open air at least two hours.
___________________________________________________________
They seem to have ignored the Article, and... 

"Also - Incarcerating Internees in Prisons like Wauwilermoos
was uncalled for. They were treated worse than American POWs
in Germany and German POWs in U.S. !!!!"

...got away with it.

Robert

Internees held in neutral nations (such as Switzerland) are not "POW's" under the terms of the Geneva Convention of 1929, nor by Chapter VI of the Hague Rules of Air Warfare's "Belligerent Duties Towards Neutral States and Neutral Duties Towards Belligerent States."

As much as you are wanting Allied internees/escapees to be ruled to be POW's, it cannot be so without going back to change black letter international law (Geneva Convention and Hague Convention) in force of the time.

World War II POW issues were covered by the "Geneva Convention Relative to the Treatment of Prisoners of War"  PART I: GENERAL PROVISIONS:

Article 1. The present Convention shall apply without prejudice to the stipulations of Part VII:

1. To all persons referred to Regulations annexed to the Hague Convention (IV) of 18 October 1907 " Laws and Customs of War on Land" who are captured by the enemy.
2. To all persons belonging to the armed forces of belligerents who are captured by the enemy in the course of operations of maritime or aerial war...

Art. 2 defined Prisoners of War as combatants in the power of the hostile Government.

Note: after the War (in 1949) the International Commttee of the Red Cross (ICRC) adopted "Geneva Convention Relative to the Treatment of Prisoners of War" - Article 5:

Under the present provision, the Convention applies to persons who "fall into the power of the enemy." This term is also used in the opening sentence of Article 4, replacing the expression "captured" which was used in the 1929 Convention (Article 1). It indicates clearly that the treatment laid down by the Convention is applicable not only to military personnel taken prisoner in the course of fighting, but also to those who fall into the hands of the adversary following surrender or mass capitulation.

In 1939 the ICRC defined a Prisoner of War as: … one who, while engaged in combat under orders of his or her government, is captured by the armed forces of the enemy. As such, he/she is entitled to the combatant's privilege of immunity from the municipal law of the capturing belligerent state, as long as those actions do not amount to breaches of the international law.

Since Swiss internees were not held by a belligerent nation or "armed forces of the enemy" the Geneva Convention did not grant them ‘privilege of immunity’ from Swiss laws. Therefore, violation of the terms of the Hague Convention's sanctuary/parole status by internees (e.g., trying to escape, after signing a pledge to not do so) is a violation of Swiss law, and failing to react by Swiss officials would be considered violation of Swiss neutrality status. Further, Geneva is (after all) located in Switzerland, so there was tremendous political sensitivity to strictly abide by the Geneva Convention on neutrality to ensure that there were no challenges to ICRC from continuing its work on behalf of POWs held in belligerent nations.

CPT(VT) W.P. Sullivan
HQ Company - Asst G-3
Camp Johnson, VT

___‹(•¿•)›____
Kilroy was here

Here we go again...does the U.S. Military follow its own guideline(s) i.e. Public Law 99-145 or the Geneva Convention?

A list of distinguished people followed the Public Law in 1992 granting authorization for the POW medal to the majority, if not all Soviet Union internees. (Approximately 218 AAF and 63 Navy airmen).

Only 2 of the approximately 200 Swiss internees of Wauwilermoos Prison have been awarded the POW medal.

Where is the justice, and most of all the support?

Robert

Robert: The situation with USSR's belligerency status is much more complex than the status of evaders and internees held by the Swiss.

The Soviets were at war with the Axis nations (principally Japan, Germany, Italy), but in 1941 Japan sought to avoid potential war with the Soviet Union by signing a non-aggression pact with the Soviets, but ended up as enemies again just before V-J day.

The Soviets had custody of Allied internees from both the ETO and PTO, including Allied POW's later liberated by the Red Army from German custody. Several post-war international commissions tried to sort out status/classification of these Allied soldiers and air crew held in the care & custody of the Soviets.

On the other hand, the Swiss Confederation was - from start to finish - a neutral nation who strove to ensure the Nazis (in surrounding Germany, Austria and France), and Italian Fascist government treated them as such. If small nations like Switzerland really want to be neutral, they must adhere not only to the letter but as well to the spirit of neutrality. Internalional laws must be followed by everybody or they cease to be respected altogether. The ability of the International Red Cross (based in Switzerland) to advocate for war captives, and moderate conditions in POW and refugee camps was based upon respect for Swiss neutrality.

CPT(VT) W.P. Sullivan
HQ Company - Asst G-3
Camp Johnson, VT

___‹(•¿•)›____
Kilroy was here

Shoo: Neither Germany nor the Allies had a strong record of respecting Swiss air space. After investigations showed British responsibility for minor attacks on Geneva, Basel, and Zurich in 1940, the Swiss were pretty touchy about defending it. 

From 1942 to 1945 British and American aircraft often violated Switzerland's airspace on their way to bomb southern Germany, contravening the Hague Convention international regulations of air warfare as it applied to Neutral Powers. To read a full report, click on: The Diplomacy of Apology: U.S. Bombings of Switzerland during World War  by Dr. Jonathan E. Helmreich. 

Here are some (of many) incidents:

1. There was controversy over attacks at Samedan on 01 OCT 1943 and at Coblenz, across the Rhine from Waldshut, Germany, on 16 FEB 1944. Because British planes were clearly in violation of Swiss neutral airspace during these periods, the US initially blamed the British. Eventually, the US accepted responsibility for the Samedan incident. But, the Coblenz affair was undecided until the Swiss documented a USAAF Thunderbolt which they allege attacked Coblenz at 1445 hrs.
2. In Schaffhausen on 01 APR 1944, about 100 civilians were killed during  USAAF bombing. The US claimed that pilots had mistakenly identified Schaffhausen – the chunk of Swiss territory on the north bank of the Rhine – as a German target. The US apologized and paid compensation … only to make the same mistake again on 22 FEB 1945, this time killing 16 in Schaffhausen and 9 in Stein-am-Rhein, also on the “wrong” side of the Rhine. The Swiss maintain that in fact both incidents were an Allied response to allegations (still not documented officially) that Schaffhausen’s private industries supplied arms to the Nazis and were an effort to make concessions to US demands to curtail trade with the Nazis.
3. National Records Center (Suitland, MD) Record Group 18: "Report of Operations 1 April 1944, to Arnold from Hq Eighth Air Force 12 Sept. 1944"

   
   

   1. 24 APR 1944: 100 bombers flew over Schaffhausen area; 12 damaged bombers landed in Switzerland, another crashed at Baltenswil, and another shot down by Swiss over Greifensee. Two Allied planes forced down at Dübendorf: two more made emergency landings.
   2. 18 JUN 1944: American pursuit planes attacked two Swiss planes escorting US bombers to fields near Dübendorf, resulting in the death of one Swiss pilot and the wounding of another.
   3. 08 SEP 1944: railway stations of Delémont and Moutier attacked and trains strafed.
   4. 08 SEP 1944: moving trains strafed near Rafz and Weiach/Kaiserstuhl.
   5. 10 SEP 1944: USAAF Mustang fired upon two Swiss pursuit planes.
   6. 11 SEP 1944: the Zurich-Basel express train strafed. 

To the Bern government's efforts to live up to the official "spirit of neutrality," it had to struggled with anger of its citizens over Allied violation of Swiss airspace and attacks on Swiss soil.  This is taken from Dept. of State Records, National Archives (740.0011 European War 1939/34724C, Hull to Harrison, 30 May 1944):

Secretary of State Hull officially assured the Swiss that standing Eighth Air Force directivess were in effect to prohibit bombings within 50 miles of Switzerland without positive identification.

The Swiss Air Force could do nothing against misdirected formations as large as 100 bombers, but the Swiss did take action regarding single planes. As these were usually cripples searching asylum, American officers resented Swiss attacks. Hull condemned a Swiss attack of 13 April on a damaged U.S. bomber. Six officers and crewmen had been killed, despite their answering to Swiss rockets with signal flares and by lowering their landing gear. Harrison also registered a "formal and energetic protest." 

Note that this 13 APR 1944 incident was 12 days after the 8th Air Force bombed Schaffhausen with 100 Swiss civilians killed and about a thousand were left homeless.

CPT(VT) W.P. Sullivan
HQ Company - Asst G-3
Camp Johnson, VT

___‹(•¿•)›____
Kilroy was here

Robersabel
Here we go again...does the U.S. Military follow its own guideline(s) i.e. Public Law 99-145 or the Geneva Convention?

A list of distinguished people followed the Public Law in 1992 granting authorization for the POW medal to the majority, if not all Soviet Union internees. (Approximately 218 AAF and 63 Navy airmen).

Only 2 of the approximately 200 Swiss internees of Wauwilermoos Prison have been awarded the POW medal.

Where is the justice, and most of all the support?

Robert

Just because some receive an award does not entitle others. The Request for a Purple Heart is awarded by appeal and review on a case-by-case basis. Sometimes decorations (and awards of all type) are subsequently made for political reasons or due to political pressure, and sometimes in bureaucratic error. This doesn't create a "blanket precedent."

The most glaring example in U.S. military history involves the Medal of Honor, of all things.

The MoH was issued to members of the 27th Maine Infantry Regiment. The 27th Maine was a nine-months regiment, organized at Portland, ME on 30 SEP 1862. Almost its entire service was garrison duty in the defense of Washington City.
 
On 26 JUN 1863, with only four days of their enlistment period remaining, the members of the two Maine regiments were ordered to leave their defensive position and prepare to be mustered-out. This was at the same time that General Lee was leaving Virginia towards Pennsylvania.
 
All of the Union forces that could be spared were sent to General Meade who was marching towards Gettysburg, leaving the defense force of Washington rather bare. Lincoln and Secretary of War Stanton appealed to the 25th and the 27th Maine to extend their service to see the Capitol through the emergency.

The men of the 25th Maine refused and walked off to a man. The 27th Maine, after an appeal by their commander Colonel Mark Wentworth, did a little better. About 300 of the 864 members of the 27th Maine stepped forward and volunteered to remain after midnight on 30 JUN. The other 560+ boarded trains for home. 

Stanton was overjoyed, and on 29 JUN 1863 directed that the men on the 27th's Muster Rolls be issued the Medal of Honor. Of the 300+/- who stayed on a few days, only four post-enlistment days of service (until 04 JUL) were performed after the term of enlistment had expired on at midnight 30 JUN, and the unit played no role in the Battle of Gettysburg that week of 02-04 JUL 1863.

The echoes of Stanton's order, however, could be heard from Washington to Maine. The wording of his order was such that it entitled all 864 be awarded the MoH: they had all been isted on the muster roles on 29 JUN because the origional enlistment period had not expired for any of them until 0001 hours on 01 JUL 1863.

By the time Stanton's orders were forwarded and approved in July, nearly every man of the 27th had returned to civilian life. So in January, 1864 the Medals were sent to the Governor of Maine for distribution. He held them until such time Colonel Wentworth (or his designee) would be available to make the official award presentation.

Colonel Wentworth continued to serve with valor with another Maine regiment to the very end of the war, and fought through some heavy battles with Grant. Wentworth  knew what heroism was all about, and knew not one member deserved the Medal of Honor (volunteer or not) for the defense of Washington. There was no accurate daily report and roll call that accounted for all individuals who actually stood a duty post for the four days in question. Some who's names indicated that they "volunteered" were not even present in the Regiments's garrison. Nobody was checking passes against a duty roster - there were none taken after 25 JUN. It was common knowledge that quite a few of the 300 were UA, finishing up personal details before going home in a few days, or seeing buddies off from the majority who had not volunteered to stay after 30 JUN.

Their families hounded Wentworth and the Maine politicians for years for the Medal they felt they were entitled to. Some received it; some did not.

CPT(VT) W.P. Sullivan
HQ Company - Asst G-3
Camp Johnson, VT

___‹(•¿•)›____
Kilroy was here

Postscript: After COL Wentworth died, someone broke into his barn and stole the remaining Medals of Honor. They were never recovered.


The story of the 27th Maine was well known among other recipients of the Medal of Honor. There was a tendency among the recipients who had earned their awards "for action involving actual conflict with the enemy" to negate the awards to members of the 27th Maine. 

The wording of a legislative act in 1915 designed primarily to provide a small stipend ($10) to Medal of Honor recipients became the focal point for heated argument.  Nearly one-third of the Medals of Honor had NOT been earned "for action involving actual conflict with the enemy", so it was now necessary to determine if these men should be denied their stipend. The solution would deny them not only THAT, but the AWARD itself.

The public debate lasted little more than a month when Congress took action.  On 3 June 1916 Section 122 of "The National Defense Act" was passed, calling for a board of five retired Army generals to review every award of the Medal of Honor to date.  Retired Lt. Gen. Nelson Miles, a Medal of Honor recipient himself and past commander of the Medal of Honor Legion, presided over the board which met from 16 OCT 1916 - 17 JAN 1917. 

The task of the board was to apply a standard for the appropriate award of the Medal of Honor, and "in any case in which said board shall find and report that said medal was issued for a cause other than that hereinbefore specified, the name of the recipient of the Medal so issued shalll be stricken perrmanently from The Medal of Honor List." That standard was identified in the earlier bill providing for the $10 stipend.  

When reviewed, the citations did NOT identify any of the 2,625 Medals of Honor recipients by name. Each of the awarded up to the time of the review was given a number, so that each numbered case would be decided on the merit of the action without undue prejudice. 

On 05 FEB 1917 the board announced its findings. In all, the board determined 911 Medals of Honor did not fit the guidelines established for appropriate cause.  

Among them, the names of all 864 men of the 27th Maine (including the name of Colonel Mark Wentworth), were stricken from the Roll of Honor. (Also stricken were the names of 4 officers and 25 senior NCOs who had received "ceremonial" Medals of Honor as President Lincoln's funeral guard.

CPT(VT) W.P. Sullivan
HQ Company - Asst G-3
Camp Johnson, VT

___‹(•¿•)›____
Kilroy was here