Bearing Silent Witness: A Grandfather's Secret Attestation to German War Crimes in Occupied France

Scholars have acknowledged that the study of World War II era intelligence can be an extremely arduous undertaking. Intelligence tradecraft, by its very nature, requires that certain information remain secret. It necessitates the sustained concealment of activities or events. Moreover, this government emphasis on secrecy often results in the suppression of sensitive information from historians and citizens alike. Thus, one must turn to declassified records of the past to reshape modern conceptions of history. This article should be regarded as a spirited departure from traditional scholarship. Specifically, it utilizes the case study method to communicate a powerful message related to both law and history. Readers are encouraged to examine this narrative and related analysis in conjunction with the primary source material it references. More importantly, they are asked to apply a socio-legal approach to the personal account contained therein. In the summer of 2011, the author was fortunate to discover a declassified report detailing his grandfather’s experiences as a young airman in World War II. Lt. Raymond Murphy was shot down in 1944 by German anti-aircraft fire on his sixteenth mission as a B-17 Navigator with the U.S. Army Air Corps. When examined from a legal perspective, his report is illustrative of a number of law of war topics, including the foundational principles that gave rise to modern humanitarian law. Unfortunately, Lt. Murphy's account also evidences something far more disturbing, a criminal atrocity committed by German forces at the French village of Oradour-sur-Glane.

this information into a larger mosaic of historical events. 17 The following discussion utilizes the case study method to communicate a powerful message related to both law and history. Readers are encouraged to examine this narrative and related analysis in conjunction with the primary source material it references. More importantly, they are asked to evaluate relevant provisions of international law and to apply these principles to a specific declassified report. It is through a similar process that this Article arrives at its central conclusion.

II. BACKGROUND
There is little doubt that memory is an essential concept for historians. 18 In their search for "the 'truth' of remembered account," scholars often turn to the case study method to "record and value" historical events. 19 In his recent work related to postwar intelligence, Michael Salter emphasizes the importance of the case study in placing declassified intelligence into its broader historical context. 20 Specifically, he suggests that "detailed case studies can be as revealing of wider historical and institutional tendencies as apparently broader sociological approaches that seek to capture and generalize about the entire field." 21 As Salter's viewpoints have gained acceptance amongst prominent academic circles, a new legal sub-discipline has started to emerge. 17 ALDRICH, supra note 9, at 15, 16; SALTER, supra note 14, at 5 (discussing the inherent difficulty in researching events that are recorded in documents scattered across various archival collections); Charlesworth, 2 SAS Regiment, supra note 13, at 21 (comparing the study of declassified intelligence to assembling a larger mosaic of historical information). 18

Lorie Charlesworth, Forgotten Justice: Forgetting Law's History and Victim's Justice in
Socio-legal analysis is described as a "fluid, changing, open movement [that] defies a fixed descriptor." 22 At its core, however, this approach focuses on the intersection of law, intelligence, and human rights. 23 Proponents of this movement stress that it explores historical events "from the perspective of the various participants, emphasizing their 'lived experience.'" 24 As a result, some scholars have asserted that this legal sub-discipline "encourages the voice of the historian to be heard directly in the text," thereby making remembered account an integral piece of the ensuing narrative. 25 Thus, readers should be aware that throughout the remainder of this Article, "the authorial voice, my voice, disrupts this narrative… to allow other interpretations to emerge and to sabotage illusions of closure." 26 This was done deliberately and in an effort to familiarize the audience with the case study that follows.
In the summer of 2011, through hard work and a bit of luck, my father and I were able to learn more about the man who made our very existence possible, Lt. Raymond Murphy. The task of locating my grandfather was complicated by a number of factors, not the least of which was his misrepresenting his age by one year to join the U.S. Army Air Corps in 1942. In addition, my father never met his birth father and knew few particulars of the man's life. Although my grandfather passed away in 1970 at the age of forty-six, we were fortunate to discover a series of documents detailing his experiences during World War II. 27 Moreover, our journey led us to his final resting place at Arlington National Cemetery.
Although the details that led to this discovery are certainly noteworthy, this Article seeks to examine something much more 22 Charlesworth, Forgotten Justice, supra note 18, at 3. 23 See id. (referencing socio-legal studies in the context of Salter's emphasis on intelligence studies and humanitarian scholarship). 24 Id. 25 Id. at 4. 26 Id. 27 The information in this Article is primarily drawn from Missing Air Crew Report (MACR) No. 4235 30 The information he provided during his debriefing was recorded in narrative form and analyzed for intelligence related to the continued presence of German forces in occupied France. At the conclusion of his interview, my grandfather signed a security certificate forbidding him from disclosing any facts related to his wartime experience. 31 The resulting report was marked "SECRET" and titled Escape and Evasion Report No. 866, Evasion in France. 32 Only recently has this document been made available to the public in electronic format. 33 Although my father and I will never be able to sit down with Lt. Murphy and discuss his story, his words are compelling even forty years after his death. As a scholar of intelligence law and history, I was struck 28  by the significance of his experiences in the summer of 1944. When examined from a legal perspective, his declassified first person account is illustrative of a number of law of war topics, including the law related to land and aerial warfare, escape and evasion, and the duties owed to inhabitants during belligerent occupation. Most notably, however, my grandfather's report also evidences criminal atrocities committed by German soldiers. The story told by Lt. Murphy is one of great valor and sacrifice. Accordingly, this Article will attempt to honor his memory while also providing a thorough legal analysis of the conduct that he witnessed. The following discussion will examine his experiences in the context of the law of war as it existed in 1944. It will also provide a modern perspective of how this body of law has evolved since World War II. In addition, this Article will examine a particularly disturbing recollection reported by my grandfather to military intelligence officers and attempt to answer one important questioncould the terrible event described in Escape and Evasion Report No. 866 constitute evidence of a longforgotten war crime? 34

III. THE LAW OF WAR IN HISTORICAL PERSPECTIVE
In order to analyze Lt. Murphy's account, it is first necessary to provide some context to the war as it existed in the skies over Europe during this period. The experiences of my grandfather and the crew of his B-17 were in no way unique or exceptional. Rather, all airmen in the U.S. Eighth Air Force, or the Mighty Eighth as it was often referred to, took part in fierce aerial combat in the period leading up to the summer of 1944. 35 One aircrew in particular, the crew of the Memphis Belle, made my grandfather's squadron famous when they were the first to 34 See LESLIE C. GREEN, THE CONTEMPORARY LAW OF ARMED CONFLICT 50, 320 (2008); SALTER, supra note 14, at 6 (illustrating that under Article 6 of the London Charter of 1945, the International Military Tribunal at Nuremberg was given jurisdiction over crimes against peace, war crimes, and crimes against humanityalthough crimes against peace and humanity had never been previously defined under international law, these terms were given broad application under these proceedings). 35  successfully complete twenty-five missions and return to America as celebrated heroes. 36 The air war had raged in Europe "for two years by the time elements of the Eighth Air Force began to arrive in late 1942 and deploy across the misty English countryside." 37 As the conflict wound on, the air war "kept on creating and re-creating itself in a furious upward curve, attackers and defenders alike improvising tactics on a round-the-clock basis, ransacking science and engineering for new technology, any kind of edgenew bomber specs and new fighter-plane wrinkles… everhigher ranges in antiaircraft fire." 38 In addition, the Eighth Air Force's mission in Europe was made all the more deadly by one major factordaytime bombing missions. 39 The American forces had committed themselves to daylight bombing, against the advice of their British counterparts, who considered it suicidal and had long since switched to nighttime bombing. The Eighth still held to the theory that a tight formation or a combat box, of B-17 Flying Fortresses, each bristling with guns, was capable of defending itself from enemy fighter aircraft. And the Eighth was finding that this was a mistake. 40 The losses suffered by the Eighth Air Force were staggering. During the European Campaign, more than 30,000 U.S airmen were killed or missing and another 30,000 were captured as prisoners of war. 41 Overall, the Eighth Air Force "took more casualties in World War II than the Marine Corps and the Navy combined." 42 Of the thirty-six bombers 36  that had originally crossed the Atlantic to form the 91 st Bomb Group, "twenty-nine had been shot down, a casualty rate of 82 percent." 43 As a result of the alarming rate of casualties, many survivors were troubled by the memories of friends and acquaintances who, just the day before, had been drinking next to them in a pub in England. 44 Although some men chose to talk openly about their experiences, others suffered in silence. 45 All airmen, however, speculated about what happened to those who were able to escape their crippled aircraft and survive their rapid descent to German occupied territory. 46 Robert Morgan, the pilot of the Memphis Belle, reflected on these men when he wrote: We knew every time we went up, that it was very possible, likely even, to get hit hard, maybe knocked out of the sky. We might get trapped and roasted at our stations, or riddled with flak or machine gun bullets, or captured and sent to prison camps if we bailed out, provided we survived the trip down. 47 From twenty-five thousand feet, the conflict below may have seemed somewhat impersonal or distant at times. When an airman found himself in the unfortunate situation of being shot down, however, the deadly reality of the situation quickly became apparent. 48 Rather than returning to base to enjoy a hot meal and shower, men like Lt. Murphy and his crew members were forced to come face to face with the ground truth of land warfare. 43 Id. at 132. 44 50 Although Hague II represented the "first successful effort of the international community to codify a relatively comprehensive regime governing the laws of land warfare," 51 the treaty provisions agreed upon by the parties to Hague IV are still in force today. 52 Parties to both Hague II and Hague IV laid the foundation for what would become known as jus in bello, or "the laws and customs of war." 53 Notably, the Preamble to Hague IV also gave expression to certain "high ideals" which formed the basis for modern humanitarian law. 54 The Preamble reads in part: Animated by the desire to serve, even in this extreme case, the interests of humanity and the ever progressive needs of civilization; [t]hinking it important, with this object, to revise the general laws and customs of war… the high contracting Parties deem it expedient to declare that, in cases not included by the Regulations adopted by them, the inhabitants and belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established among 49 See Michael Schmitt, Military Necessity and Humanity in International Humanitarian civilized peoples, from the laws of humanity, and the dictates of the public conscience. 55 This section of Hague IV, which would come to be known as the Martens Clause, makes a clear distinction between the "laws" versus the "customs" of war. 56 Thus, while Hague IV represented a "relatively comprehensive agreement on the law of land warfare," 57 its provisions were not intended to be inclusive of all applicable law. Rather, the Martens Clause proscribes that "cases not included in the Regulations annexed to the Convention remain governed by customary international law relating to the conduct of warfare." 58 Consequently, this principle would be resoundingly reaffirmed in the 1949 Geneva Convention III Relative to the Treatment of Prisoners (GPW), the 1949 Geneva Convention IV Relative to the Protection of Civilian Persons in Times of War (GC IV), and the 1977 Geneva Protocol I Additional to the Geneva Conventions of 1949 (AP I). 59 The "Geneva Law," as this postwar collective is sometimes referred to, dictates that the principles of humanitarian law are applicable to any conflict, even if a nation has clearly denounced the Conventions. 60 Thus, Hague IV, which regulated land warfare during World War II, contained many of the fundamental precepts for modern international agreements. 61 In effect, the Geneva Law "complemented and supplemented" these already existing legal norms. 62 German officials, however, had a much different interpretation of the duties owed under Hague IV in the build-up to World War II. 63  Germany's reservation to Hague IV should have served as a forewarning of events to come. Specifically, Article 44 states that a "[b]elligerent is forbidden to force the inhabitants of territory occupied by it to furnish information about the army of the other belligerent, or about its means of self-defense." 65 Thus, Germany's reservation to Hague IV could be viewed as evidence of the country's intention to not only invade neighboring territory, but also gather information on a country's military defenses by forcing local inhabitants into collaboration. 66 These facts become even more troubling when coupled with the doctrine of Kriegsraison geht vor Kriegsrecht, or as it is more commonly referred to, Kriegsraison. 67 Kriegsraison is a concept that first appeared in German literature in the late 18 th century. 68 The literal translation of this term is "military necessity in war overrides the law of war." 69 Accordingly, German . Solis writes that "Kriegsmanier was the conduct of war according to the customs and laws of war; Kriegsraison, its opposite, was the non-observation of those customs and laws." Id. He further asserts that while Kriegsraison was embraced by some German politicians and military officers, "it is probable that the resort to this doctrine was above all based on contempt for the law." Id. 68 SOLIS, supra note 67, at 266. See also Garner, supra note 63, at 11. 69 SOLIS, supra note 67, at 265. See also WAR BOOK, supra note 63, at 68. Notably, this German manual on land warfare states that: A war conducted without energy cannot be directed merely against the combatants of the Enemy State and the positions they occupy, but it will and must in like manner seek to destroy the total intellectual and material resources of the latter. Humanitarian claims such as the protection of men and their goods can only be taken into consideration in so far as the nature and object of the war permit.
proponents of the doctrine believed that "military necessity… renders inoperative ordinary law and the customs and usages of war." 70 Interestingly, this belief starkly contrasts with the contemporary law of war framework which recognizes that "[n]ecessity cannot overrule the law of war." 71 In fact, modern U.S. Army doctrine explains that "[m]ilitary necessity has been generally rejected as a defense for acts forbidden by the customary and conventional laws of war." 72 Of particular note, relevant law and custom are binding "not only upon states… but also upon individuals, and in particular, the members of their armed forces." 73 Although Kriegsraison was overwhelmingly repudiated by the international community in the years following World War II, the facts and circumstances in Escape and Evasion Report No. 866 strongly suggest that this doctrine was thriving amongst German forces in wartorn France. 74 While Kriegsraison allows a belligerent to violate rules of international law it deems "necessary for the success of its military operations," 75 the underlying reasoning for this viewpoint is fundamentally flawed. 76 As German forces in World War II were the sole judge of what constituted military necessity, the "doctrine [was] really that a belligerent may violate the law or repudiate it or ignore it whenever [it was] deemed to be for its military advantage." 77 Thus, Kriegsraison had no basis in fundamental principles of international law, but rather relied on a practitioner's self-serving motivations and an innate "contempt" for the established law of war. 78 70

IV. THE FIRST TO LEAVE THE SHIP
At 1154 hours on April 28, 1944, two airmen in accompanying B-17s observed my grandfather's aircraft leave formation with its "No. 3 engine on fire." 79 The weather conditions for the mission over Avord, France were relatively clear with only "slight ground haze… [and] scattered clouds." 80 Although this enabled the heavy bombers a great deal of visibility over their target, it also allowed German forces below to more effectively direct their anti-aircraft fire during this dangerous daytime mission. The first witness to the incident remembered seeing nine parachutes before his vision was obstructed by other planes in the formation. 81 The second witness saw all ten airmen bail out of the crippled aircraft before it exploded in midair. 82 My grandfather reported that his B-17 was "in pretty bad shape" after receiving a direct hit immediately over its target. 83 He had been wounded in both hands by exploding flak and observed a substantial amount of "fire on [the] wing." 84 The gas tank between the No. 3 and No. 4 engine was in flames, 85 which left the crew with little time to escape. My grandfather "was the first to leave the ship" and jumped from an altitude of approximately 15,000 feet. 86 He delayed opening his parachute to avoid German flak and machine gun fire. 87 Unfortunately, he waited too long and the resulting impact knocked him unconscious and fractured his back. 88 Shortly thereafter, local Frenchmen picked him up and carried him into the woods where they gave him some "wine and a woodman's jacket" and "helped [him] the best they could." 89 79  Although the pilot, Lt. James Cater, also escaped the crippled B-17, his exit from the nose hatch at 15,000 feet was less than ideal. 90 He jumped with his hand on the rip cord, and accidently released his parachute while he was "still in the prop wash." 91 In all, Lt. Cater hung from his parachute harness, exposed to exploding flak, for nearly eighteen minutes. 92 During the final stage of his descent, he observed German "machine gun fire from the ground, directed at [him] and the other men." 93 Although he landed unharmed, he reported that other downed airmen were not so lucky. Lt. Cater recounted that "[t]wo men were said to be shot by German machine gun fire" while trapped in their harnesses. 94 When interviewed by military intelligence officers after his escape, my grandfather was unsure of the fate of his fellow crewmembers. 95 He reported seeing seven parachutes open during his rapid descent, and remarked that the bombardier was exiting the aircraft "at the moment" the plane exploded. 96  While my grandfather's predicament must have seemed quite desperate, he was fortunate to have survived such a harrowing experience. As he rightfully noted, he had not been killed during his escape nor had he been captured as a prisoner of war. Most importantly, the delayed release of his parachute had saved him from the indiscriminate machine gun fire directed at his crew while they hung defenseless from their parachutes. While such conduct on the part of German forces certainly seems less than chivalrous, it is also notable for another reason. It evidences a clear disregard for the laws and customs of war.
As a matter of course, "the belligerents in both World Wars accepted the 1907 [Hague] Conventions as governing their activities." 99 Although Hague IV provides limited guidance related to the targeting of defenseless airmen, it is notable that the annexed Regulations make reference to the use of "balloons" and "appliances in the air" during times of war. 100 Thus, while Hague IV's provisions were intended to apply to land warfare rather than aerial warfare, one could infer that it is often quite difficult to ascertain where one type of conflict ends and the other begins. This distinction is especially complicated when discussing the duty owed to those who have successfully parachuted to the earth after their aircraft has been destroyed.
While Hague IV contains guidelines related to the treatment and care of prisoners of war, 101 my grandfather's situation was not directly analogous to that of a captured prisoner. Rather, he was a combatant who had successfully escaped his stricken aircraft and had not yet been given the opportunity to surrender. He was admittedly unarmed and was effectively incapacitated at the time of his landing. 102 Despite the fact that Germany maintained a reservation to Article 44 of the annexed Regulations, they were bound by all other duties imposed by Hague IV when dealing with U.S. airmen. 103 In particular, Article 23 imposes a specific prohibition on killing or wounding an enemy "who, having laid 99  In addition, German soldiers were constrained by the rules of customary international law articulated in the 1923 Hague Rules of Aerial Warfare. 105 Although these draft rules were never adopted as legally binding, "they were regarded as an authoritative attempt to clarify and formulate rules of air warfare, and largely corresponded to [established] customary rules and general principles." 106 As evidence of their applicability during World War II, "both Axis and Allied powers proclaimed their adherence to the [Hague Rules of Aerial Warfare] and made accusations of their violation." 107 Specifically, Article 20 expressly forbids the type of misconduct witnessed by my grandfather and his crew. 108 It states, "[w]hen an aircraft has been disabled, the occupants when endeavoring to escape by means of parachute must not be attacked in the course of their descent." 109 Under the modern law of war, there is still no "formally binding agreement which exclusively addresses air warfare." 110 As if to emphasize the importance of the 1923 Hague Rules of Aerial Warfare, however, a number of its principles are reiterated in modern provisions of international law. 111 Notably, GPW formally recognizes the concept of combatant immunity 112 which is further articulated in contemporary U.S. jurisprudence. 113 In recent times, combatant immunity has come to signify "a doctrine rooted in the customary international law of war, [which] forbids prosecution of soldiers for their lawful belligerent acts 104 Hague IV, supra note 55, art. 23. 105  committed during the course of armed conflicts against legitimate military targets." 114 Furthermore AP I, which has not been adopted by the United States but has come to represent persuasive customary international law, 115 provides unambiguous protections for escaping parachutists. Specifically, AP I forbids the targeting of a "person parachuting from an aircraft in distress" and further requires that a downed airman "be given an opportunity to surrender before being made the object of attack." 116 Thus, it is "generally considered a rule of customary international law that an aircrew baling out [sic] of a damaged aircraft are hors de combat and immune from attack whether by enemy aircraft or from the ground." 117 In addition, once an airman reaches the ground he shall not be made the object of attack if "he has been rendered unconscious or is otherwise incapacitated by wounds or sickness, and therefore is incapable of defending himself." 118 Thus  While Lt. Murphy was certainly fortunate to have escaped the fate of some of his fellow airmen at the hands of the Germans, his adventure was far from over. For the next three months he would be forced to evade capture by enemy soldiers and la Milice Française, local French militias loyal to occupying German forces. 119 My grandfather had been trained in escape and evasion in February of 1944 by an Intelligence Officer in England and he found the lectures to be of significant value. 120 As revealed in Escape and Evasion Report No. 866, he took his duties very seriously. When asked about the destruction of "secret papers and equipment," my grandfather responded in partially capitalized letters, "I ATE them," as if to emphasize his resolve. 121 In order for my grandfather to escape detection by German soldiers, it was necessary for him to blend in with the civilian population. He was lucky that the Frenchmen who initially found him saw fit to place a "woodman's jacket" over his shoulders. 122 Although my grandfather could barely walk because of the back injury he sustained during his landing, the jacket provided a much needed disguise. 123 He remarked: I started S by compass. Shortly after I started out, and while I was talking to some Frenchmen, three truckloads of Germans drove by, evidently searching for me. They paid no attention to me while the Frenchmen said "Bonjour" to them… [Subsequently] I kept well off the roads and stayed in the woods as much as possible. 124 119  Throughout my grandfather's escape, German soldiers were in close pursuit. He was told by resistance fighters that the "Germans formed a circle from Avord and followed him as far as [the town of] Blet." 125 This was a distance of nearly twenty kilometers. At one point, "they were just three or four kilometers behind; one town they entered about four hours after [he] had left it." 126 My grandfather, however, had discovered a creative means of transportation in light of his injuries. He observed that "[b]icycling seemed to be quite safe as long as one ducked for cars." 127 Following the D-Day invasion of June 6, 1944, travel became increasingly difficult. 128 My grandfather noted that German military operations were intensifying as a result of the Allied landing, and the "Gestapo ran patrols on the main roads, using chiefly motor cars." 129 In addition, the Germans did away with all "through trains in France" and transportation was limited to only those rail cars running east or northeast towards the German border. 130 In the meantime, however, my grandfather had been fortunate to come across a French family that put him in direct contact with le Maquis. 131 After contacting the French Resistance, Lt. Murphy was moved to the farm of a local resistance leader, Monsieur Camille Gerbeau. 132 At this point in his journey, my grandfather seemed less concerned with affecting his own escape and instead turned his attention towards assisting the nearly 575 men training at this "center of resistance activities." 133 He was introduced to the grand chef de resistance, and "participated in the parachuting [of resistance forces] and in their radio work, decoding messages as they instructed [him]." 134 As a result of his actions, my grandfather was now acting in concert with le Maquis and aiding their efforts as if he was a fellow resistance fighter rather than a downed U.S. airman. He writes that he 125 Id. at 4. 126 Id. at 1. 127 Id. at 2. 128 Id. 129 Id. 130 Id. 131 Id. at 4. 132 Id. 133 Id. at 5. 134 Id. was "sending out regular messages" 135 to Allied forces and was also relaying information related to German "V-1" and "V-2" weapons. 136 When he was finally rescued by the British Royal Air Force on August 5, 1944, he was fully immersed in the culture of the resistance fighter. As evidenced in Escape and Evasion Report No. 866, my grandfather often used the term "we" to describe the efforts of le Maquis against the occupying German forces. 137 Thus, on August 4, 1944, he recalls that "we got our operational messages over the BBC… that night we went to the [meeting location], armed with MG's [machine guns] and psitols [sic]." 138 Finally, more than three months after his plane was shot down over Avord, Lt. Murphy's long awaited salvation arrived. 139 Although my grandfather returned to England on August 6, 1944 after a daring Royal Air Force rescue, 140 the danger he faced in occupied France is even more significant when analyzed from a law of war perspective. Prior to World War II, parties to a conflict presupposed that treaty obligations applied only to international armed conflicts or conflicts between states. 141 Notably, Hague IV and its annexed Regulations refer exclusively to "conflicts between nations." 142 As demonstrated by my grandfather's narrative, however, the conflict in German occupied France was extremely complex. 143  German soldiers were forced to defend against aerial bombardment from traditional military forces stationed outside of German occupied territory, internal resistance fighters such as le Maquis were actively challenging German control from within. 145 The multifaceted nature of this conflict allowed escaping combatants to more easily blend in with sympathetic members of the local French population in order to avoid capture. 146 Although my grandfather deliberately disguised himself in civilian clothing to avoid detection, his interactions with le Maquis appear to go well beyond that of a typical downed airman. As a result, he could no longer be considered as merely an escaping combatant. Rather, his activities are more accurately described as being analogous to that of a spy or saboteur. 147 The term "spy," as it is generally understood under Hague IV, refers to a person who "collects information clandestinely behind enemy lines while wearing civilian clothing." 148 Specifically, a person is considered a spy when "he obtains or endeavors to obtain information in the zone of operations of a belligerent, with the intention of communicating it to [a] hostile party." 149 While my grandfather provided valuable assistance to the French Resistance, such activities were likely conducted with substantial risk to his well-being.
Hague IV makes a clear distinction between soldiers "carrying out their missions openly" and those seeking to conceal their identities by removing their uniforms. 150 In addition, the 1923 Hague Rules of Aerial Warfare requires members of the crew of a military aircraft to wear a "distinctive emblem… should they become separated from their aircraft." 151 Generally, "[a]ny person who collects information while in uniform retains his status as a combatant… and if captured is to be treated as a prisoner of war." 152 In contrast, spies and saboteurs do not enjoy protected status when captured by enemy forces. 153 Rather, they may be tried and sentenced to death for their actions. 154 In contemporary conflicts, AP I provides that, as a matter of customary international law, "combatants are obliged to distinguish themselves from the civilian population while they are engaged in an attack or in a military operation preparatory to an attack." 155 Therefore, it would be contrary to the modern law of war for a combatant to disguise himself as a civilian while openly taking part in hostilities. AP I recognizes, however, "that there are situations in armed conflicts where, owing to the nature of the hostilities an armed combatant cannot so distinguish himself." 156 All that is required in these instances is that an individual "[carry] his arms openly." 157 A combatant that is captured by an enemy while refusing to comply with these provisions effectively "forfeit[s] his right to be a prisoner of war." 158 Therefore, under the law of war as it existed in 1944 and in modern treaty provisions, it is highly advisable that "members of the armed forces engaged in the collecting of information or sabotage in… enemy-occupied territory should, whenever possible, wear [a] uniform." 159 To do otherwise would run the risk of being treated as a spy if captured. Given the remainder of the discussion contained in this Article, it seems likely that my grandfather would have been put to death without the benefit of a trial had he been captured while assisting le Maquis. In fact, Adolf Hitler had issued an order in 1942 calling for the immediate execution of Allied parachutists as a matter of military 153 Id. at 145; Radsan, supra note 10, at 1277-78. 154 Hague IV, supra note 55, art. 30; see also Ex parte Quirin, 317 U.S. 1 (1942). In this historic decision, the U.S. Supreme Court upheld the jurisdiction of a military tribunal that sentenced eight German-born conspirators to death when they were captured entering the United States during World War II for the purposes of espionage and sabotage. Ex parte Quirin, supra, at 48. These individuals initially wore German military uniforms. Id. at 21. After penetrating inland, however, they buried their uniforms and disguised themselves in civilian attire. Id. Notably, Article 30 of Hague IV requires that "a spy taken in the act shall not be punished without previous trial." Hague IV, supra note 55, art. 30. In fact, in modern conflicts it is widely understood that to "punish [a spy] without a proper trial is a war crime." GREEN, supra note 34, at 176. 155

VI. THE HORRORS OF WAR AND GERMANY'S VIOLENT OCCUPATION
Lt. Murphy survived the harrowing experience of parachuting from his stricken B-17 and subsequently evading capture. Specific details of his declassified account, however, reveal that he was likely unprepared for the horrific nature of land warfare. 161 As described in the remainder of Escape and Evasion Report No. 866, the conduct of German soldiers was not only contrary to the law of war as it existed in the summer of 1944, it was also morally reprehensible. 162 Within the first two days of his attempted escape, my grandfather learned that survival was going to be a daily struggle. He slept in the woods at night and nearly froze to death. 163 He quickly exhausted the meager supplies in his survival pack and had no food or water. 164 As a result, he had to approach sympathetic civilians for assistance. 165 One of the few facts my father and I knew about my grandfather was that the man was a devout Catholic. Thus, it must have seemed like divine providence when in those first few days he was directed to a Catholic Priest for assistance. 166 Although my grandfather spoke no French, local inhabitants likely realized his religious preference from the engravings on his dog tags. 167 They gave him a letter and pointed him toward a nearby 160 162 Id. 163 Id. at 8. 164 Id. at 9. 165 Id. at 8. 166 Id. 167 Id.
village. 168 He circled the small town at first, looking for signs of German patrols, and then proceeded directly to the church as he had been instructed. 169 When the Priest appeared at the door, my grandfather handed him the note and pleaded for assistance. 170 The Priest responded almost immediately with one simple phrase -"Au revoir." 171 Like most of the civilian population, this man of faith was likely frightened by the threat of retribution. German forces had increased patrols because they knew "Americans were in the region." 172 In addition, la Milice Française was terrorizing the countryside at the behest of its German occupiers. 173 With few options, my grandfather slept on the bare earth and later concealed himself amongst horses in local stables. 174 He even hid in one family's "WC," or outhouse, on June 6, 1944, the day the Normandy landings took place. 175 His daily existence was fraught with peril, and during this time, German soldiers monitored all radio transmissions in the region. 176 As a result, a number of French operatives were captured after they signaled my grandfather's position to Allied troops. 177 One man who narrowly escaped had "literally been beaten half to death" during the incident. 178 Being taken into custody by German forces or la Milice Française meant certain death for many members of le Maquis. 179 While staying at Monsieur Gerbeau's farm, my grandfather met a "tall very good looking young captain in the French Intelligence Service, Jean, who had arrived with a short very heavily bearded chap… having parachuted into France." 180 These men came to meet with the grand chef de resistance and assist training operations at the farm. 181 Unfortunately, both men were captured and subsequently brutalized by German 168 Id. 169 Id. at 8-9. 170 Id. at 9. 171 Id. 172 Id. at 4. 173 Id. at 5. 174 Id. 175 Id. at 4. 176 Id. at 5. 177 Id. 178 Id. 179 JACKSON, supra note 29, at 544-46. See generally CHAMBARD, supra note 29. 180 E&E No. 866, supra note 28, at 5. 181 Id. forces. 182 Jean, the tall good looking captain, was tortured. 183 His companion, the "bearded chap," was summarily murdered. 184 Although these events are alarming, they represent only a hint of the true horror my grandfather witnessed. German soldiers throughout France used violence as a tool of occupation. 185 Furthermore, they were capable of far more egregious conduct than merely murdering local resistance fighters. While the deaths of members of le Maquis were certainly tragic, there is one particular recollection contained in Escape and Evasion Report No. 866 that defies all explanation. 186 It can only be described as a grotesque and appalling perversion of war.
In a handwritten note scrawled in the margin of the report, my grandfather attests to having witnessed a shameful atrocity committed against the French population. 187 In his own voice, he painfully recalls: About 3 weeks ago I saw a town within 4 hours bicycle ride up the Gerbeau farm where some 500 men, women, and children had been murdered by the Germans. I saw one baby who had been crucified. 188 There is no question that the event described by Lt. Murphy signifies a complete abandonment of the laws and customs of war. Readers of his words, even sixty-nine years after they were first transcribed, cannot help but succumb to the powerful and deplorable imagery they invoke.
Such conduct seemingly transcends all conscionable bounds of cruelty. Furthermore, it suggests a gross repudiation of every principle of human decency. While the men who committed these crimes likely justified their behavior under the doctrine of Kriegsraison, the genuine rationale behind their conduct may be far simpler to explain. German soldiers were attempting to terrorize French 182 Id. 183  civilians into submission. 189 In effect, they were acting out of desperation as the War slowly slipped from their grasp. 190 Despite the shocking content of this revelation, it is initially unclear whether the full significance of my grandfather's addendum was recognized by military intelligence officers overseeing his debriefing. As a practical matter, this hastily transcribed addition was not included in the final, typed version of the report. 191 The officer charged with conducting my grandfather's interview also failed to record any other information related to this grisly remembrance. 192 Rather, he seemed far more concerned with discussing German tactical movements and troop concentrationsthe precise type of information that escape and evasion reports were intended to collect. Thus, it seems possible this classified postscript, which was unavailable for public scrutiny, went unnoticed by the approving official and the Army chain of command due to its nearly indecipherable penmanship.
By the time this document was first declassified in 1974, nearly thirty years had passed since the end of the War and four years since my grandfather's death. 193 In addition, the war crime trials at Nuremberg and other related war crimes proceedings had concluded over twentyfive years prior. During this intervening period, my grandfather was prohibited from openly discussing the particular facts of his wartime experience because of the security certificate he signed in 1944. 194 Moreover, it seems likely that he found it difficult to speak about such hellish recollections. In subsequently contacting members of the Murphy family, it was clear they had no knowledge of this report or the incident described therein. As a result, it has yet to be determined whether this long-faded and nearly forgotten attestation represents 189 HASTINGS, supra note 185 (describing savage reprisals taken against civilians by the 2nd SS Panzer Division in central France). 190  This event demonstrates an absolute disregard for the "high ideals" expressed in the Preamble to Hague IV. 196 Moreover, it represents multiple violations of the Articles contained in the annexed Regulations. 197 During World War II, there was "no special provision in the law of armed conflict concerning the treatment of the civilian population in territory controlled by a belligerent… although atrocities against the civilian population of the adverse party would amount to war crimes." 198 Rather, the duties inherent to belligerent occupation were expressed by a host of provisions in Hague IV. 199 Generally, Hague IV's annexed Regulations "proscribe the rules of conduct and the limitations imposed upon the occupant on behalf of the inhabitants of the territory in question." 200 Article 43 dictates that 195 See SARAH FARMER, MARTYRED VILLAGE (1999); JEAN-JACQUES FOUCHE, MASSACRE AT "the authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country." 201 Notably, the conduct described in Escape and Evasion Report No. 866 seems to embody the antithesis of protecting public order and safety. 202 The concept of distinction, which was first articulated in Article 25, requires that parties to a conflict distinguish at all times between combatants and peaceful civilians. 203 This provision effectively precludes "the attack or bombardment, by whatever means, of towns, villages, dwellings, or buildings which are undefended." 204 Articles 22 and 23 of the annexed Regulations prohibit the infliction of "unnecessary suffering" and "superfluous injury" during hostilities. 205 As noted, "[t]he right of belligerents to adopt means of injuring the enemy is not unlimited." 206 In addition, Article 50 declares that "[n]o general penalty, pecuniary or otherwise, shall be inflicted upon the population on account of the acts of individuals for which they cannot be regarded as jointly and severally liable." 207 Thus, collective punishment of the civilian population is forbidden. 208 World War II was "catastrophic for many civilian populations, especially those in besieged and bombarded cities, and in occupied territories." 209 At the end of hostilities, however, "there was broad international acceptance of the need to adopt an international agreement for the protection of civilians." 210 As a result, GC IV was the "first treaty devoted exclusively to the protection of civilians in time of war." 211 Article 3 of GC IV reemphasizes the humanitarian principles outlined in the Martens Clause when it requires that "[p]ersons taking no active part in the hostilities… shall in all circumstances be treated humanely." 212 Furthermore, Article 4 introduces the term "protected persons" which is defined as "those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a party to the conflict or Occupying Power of which they are not nationals." 213 In contemporary conflicts, GC IV requires that certain common protections be applied to protected persons, in particular women and children. 214 For example, "[p]rotected persons are entitled, in all circumstances, to respect for their persons, their honour, their family rights, their religious convictions and practices, and their manners and customs... [t]hey shall at all times be humanely treated, and shall be protected especially against all acts of violence." 215 Article 32 of GC IV also forbids "physical suffering or extermination of protected persons… [t]his prohibition applies not only to murder, torture, corporal punishment, mutilation… but also to any other measures of brutality whether applied by civilian or military agents." 216 In addition, GC IV's provisions have been heavily supplemented by AP I which deals with the protection of civilian persons during times of war. 217 Notably, Article 35 of AP I reiterates Hague IV's prohibition on superfluous injury and unnecessary suffering. 218 Moreover, Article 51 states that the "civilian population and individual civilians shall enjoy general protection against dangers arising from military operations… [they] shall not be the object of attack." 219  violence the primary purpose of which is to spread terror among the civilian population" are expressly prohibited. 220 As such, there is little question that the event described in Escape and Evasion Report No. 866 constitutes a gross violation of both the historical and contemporary laws of war. In addition, this incident signifies a repudiation of the humanitarian principles outlined in the Preamble to Hague IV and in relevant customary international law. Despite Germany's reliance on the doctrine of Kriegsraison, there was no general exception to applicable treaty provisions which allowed for indiscriminate attacks and infliction of unnecessary suffering based upon military necessity. 221 Rather, the event described by my grandfather should have been characterized as an egregious war crime and punished accordingly.

VII. CONCLUSION
The study of declassified intelligence has the potential to reshape modern conceptions of history. In particular, World War II era records provide valuable insight into "aspects of German behavior, and thus of Western European culture in the first half of the twentieth century." 222 As German forces swept across Europe, Nazi leaders worried "that 'weaker' contemporaries and subsequent generations might not understand the 'necessity' of their actions." 223 Thus, they attempted to conceal not only the corpses of their victims but also the homicidal policies underlying their wartime indiscretions. 224 At the conclusion of this great conflict, thousands of war criminals escaped prosecution due in part to an "intelligence failure" by Allied forces. 225 Scholars acknowledge that "this failure had less to do with collecting information than with recognizing its significance." 226 Socio-legal methods have a tendency to reveal alternative viewpoints or reconstructions of historical events. 227 As Salter notes, "[n]o single and supposedly self-sufficient academic discipline can ever be adequate to any research topic." 228 Thus, proponents of this interdisciplinary approach understand that "history is a work in progress." 229 They appreciate that by elevating the experience of the individual above the collective, researchers are able to challenge the assumptions of traditional historians. When ordinary soldiers "include personal comments in their correspondence, or write in pencil on the margins of reports… [t]hey are not writing diaries for posterity." 230 Rather, these historical witnesses are "writing in the moment to satisfy military requirements." 231 As a result, their words should be afforded additional deference by virtue of their having experienced these events firsthand. 232 Unfortunately, modern war crimes scholarship is often dominated by "pessimism, disapproval, and critique." 233 This environment of negativity has led some to reject the study of declassified intelligence, and by implication socio-legal analysis, as a "naive search for heroes." 234 Such academic detachment ignores "the possibility of alternative histories… [as well as] a broader understanding and recognition of the personal roles of individuals." 235 Moreover, it marginalizes the voices of 225 BREITMAN ET AL., supra note 9, at 6. See also Charlesworth, 2 SAS Regiment, supra note victims whose stories have yet to be told. 236 Most scholars fail to understand that only by questioning established orthodoxy can we truly "expose and destabilize claims to the authority of objectivity." 237 Thus, "our best hope of completing this complex mosaic… are aggressive and inquisitive historians who believe that there are no real secrets." 238 Although critics of this Article will contend that numerous treatises have dealt with German atrocities committed during the War, there is one important distinction that must be made. As with any historical research, it is often difficult to shift from a theoretical analysis of events to a precise study of "temporal and geographic locations." 239 Thus, I went to great lengths to determine the accuracy of the information contained in my grandfather's report. In October of 2011, I traveled to the Cher region of France. More importantly, I was accompanied by a remarkable historical witness, Tech Sergeant Clement Dowler, the eighty-seven year old ball turret gunner from my grandfather's fateful flight. 240 Mr. Dowler and I saw many memorable things as we retraced my grandfather's journey south through the French cities of Avord, Bourges, Sancoins, and Sagonne. Thanks to the generosity of the French Air Force, we gazed out upon the old runway of the Avord Airbase where Mr. Dowler fractured his leg during a rough parachute landing on the afternoon of April 28, 1944. We also visited with the wonderful townspeople of the region who sheltered my grandfather and still referred to him as the "géant américain" due to his surprising height. 241 In addition, historians associated with le Musée de la Résistance in Bourges introduced us to extraordinary men who served with le Maquis during this tumultuous period in French history. 242 236 Id. at 9. 237 Id. at 4. 238 ALDRICH, supra note 9, at 16. 239 Charlesworth, Forgotten Justice, supra note 18, at 3. 240  Of particular note, not one of the individuals presentscholar, resistance fighter, or Mr. Dowler himselfcould state with certainty where the dreadful event described by my grandfather occurred. In subsequent correspondence, a historian in the region, Frederic Henoff, described the difficulties he encountered during his search for related information: Regarding your grandfather's [Escape and Evasion Report], I had also read this handwritten note. When he was hidden at Mr. Gerbeau farm [sic], at the time of the Normandy landing, a city not far from there -Saint-Amand-Montrondwas for a short time a place of fights between the French underground and the Germans... But we don't know [the whole] story, and perhaps your grandfather saw things which were forgotten then in the storm of the following fights, at the time of the liberation of the area.
The scale of the carnage described in Escape and Evasion Report No. 866 strongly suggests that my grandfather bore witness to the aftermath of the massacre at Oradour-sur-Glane. 243 This infamous mass murder represents one of the most disgraceful wartime atrocities committed by German forces in occupied France. Moreover, he may have been recalling the fighting that took place in Saint-Amand-Montrond, or events that transpired in another nearby village, as Mr. Henoff maintains. It is clear that Lt. Murphy traveled through this region, and he likely overestimated the number of victims he observed. Nonetheless, there is one other alternative that has significant historical and moral implicationsno matter how improbable it may seem, this declassified intelligence report could contain evidence of an undocumented German war crime.
Criminal acts were witnessed by many, including Mr. Dowler, during his five month escape from German occupied France. Despite this fact, the victims described in my grandfather's report are no less deserving of justice than the millions of innocents who suffered during 243 For additional discussion of the massacre at Oradour-sur-Glane, see generally FARMER, supra note 195. Notably, the village of Oradour is within a four hour bicycle ride of the Cher department. In addition, this is the general area where by grandfather and Tech Sergeant Clement Dowler independently participated in resistance activities from the period May through August 1944. Interview with Clement Dowler, former Tech Sergeant, in Avord, France (Oct. 12, 2011). this brutal conflict. At the conclusion of hostilities in World War II, it was widely acknowledged that the "Germans had ill-treated and in many cases executed Allied personnel belonging to both regular and resistance forces, as well as civilians… in occupied territories." 244 As a result of Germany's disregard for the tenets of humanitarian law, the Nuremberg Tribunal was established pursuant to the London Charter of 1945 for the purpose of securing "just and prompt trial and punishment of the major war criminals of the European Axis." 245 The London Charter was notable in that it first provided a clear definition of what constituted a war crime for the purpose of the ensuing proceedings. 246 The principles established in the Charter and in the Nuremberg Tribunal's resulting judgment would come to be regarded as declaratory of the law of war. 247 The term "war crime" was given broad application in the proceedings and included conduct that evidenced "violations of the laws and customs of war." 248 In addition, the Charter introduced a new subset of war crimes described as crimes against humanity. 249 This designation included such transgressions as "murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population." 250 Interestingly, the Nuremberg Tribunal gave little credence to the use of military necessity as a defense to German war crimes. 251 Many felt that by distorting this concept, German soldiers reduced "the entire body of the laws of war to a code of military convenience, having no further sanction than the sense of honour [ commander." 252 Thus, within the guidelines set forth by the Nuremberg Tribunal, my grandfather's account unequivocally demonstrates that Kriegsraison is both morally reprehensible and criminal. In effect, this doctrine allows a belligerent to justify even the most abhorrent behavior under the guise of military necessity. Consequently, it serves as nothing more than a means of enabling wartime misconduct. While the Nuremberg Tribunal is now a fixture of the past, the majority of German war criminals were tried by national courts. 253 This trend continues to the present day. 254 One only has to look to the May 2011 conviction of a former guard at a Nazi concentration camp to see the utility of this forum for prosecuting war crimes which occurred many years ago. 255 Although my initial intent in writing this Article was to pay tribute to Lt. Murphy's bravery and sacrifice, my thoughts often turned to the innocent French civilians whose lives were extinguished in the summer of 1944. I pondered whether the perpetrators of this vicious crime were punished and whether the true extent of their acts had been exposed to the world.
As a result, my final conclusion related to Escape and Evasion Report No. 866 is that the facts outlined in this document simply demand further scrutiny. In essence, this Article is a humble appeal for renewed investigation of this historical evidence. National courts still provide a feasible venue for determining culpability should my grandfather's report lead to evidence that is more substantial in nature. Furthermore, the Nuremberg Tribunal did not place a statute of limitations on war crimes or crimes against humanity, nor should the French government. 256 252