I agree with that, if those cases exist. But what we have in the discussion above are not thousands of cases, but a small set of edge cases. Those edge cases were never taken to trial, so we don’t know what they mean.
OTOH, do we know what these thousands of other cases are? How do we know they exist? And more to the point, what were the circumstances and what were the reasons they were not prosecuted? If there is documentation of such cases, it would be interesting. Do we have documentation of thousands of cases where soldiers refused an order to surrender and were not prosecuted? Similarly, do we have thousands of documented cases of soldiers that did surrender that were not prosecuted?
If these cases exist, it would be useful to know what they were. But asserting that they exist really does require some documented backup.
These cases most certainly exist. What we have are tens of thousands of cases of US military personnel surrendering, ‘edge’ cases where commanding officers ordered the men under their command to surrender in numbers ranging from the hundreds to the tens of thousands en masse and zero cases of either individual soldiers being prosecuted for surrendering or officers up to general officer rank being prosecuted for ordering their commands to surrender - even in the case of General Sharp, who ordered his forces to stack arms and raise the white flag even when in many instances they were fully capable of continued resistance and were not yet even under direct threat. The two regiments of the 106th Infantry Division that Cols. Descheneaux and Cavender surrendered to the Germans totaled over 6,000 men. Hell, 433 of the 522 US military personnel on Wake Island surrendered en masse to the Japanese at the end of the battle in 1941. This assertion that we can draw no conclusions from that and insist that US military personnel are not allowed to surrender individually or order their command to surrender simply flies in the face of historical fact.
Indeed. I was really talking about the case of soldiers refusing to surrender being charged. I was to some extent fishing. However, your point pretty much closes the case about surrender being prohibited. It isn’t. Precedence is clear. Even taking the code of conduct into account, the US did not regard surrender as prohibited.
There is an assertion that the situation has changed since WW2. That makes it harder.
Perhaps there is such an impression that it has and that it is, but I think any perceived change likely has more to do with the combat situations US forces have been confronted with since WWII than substantive changes in the law. Since Korea in particular, opportunities for large formations to be overrun and encircled by superior forces while still mostly in tact and under command of… someone in a recognized position of authority… have been vanishingly small. In general, if more than a handful (or really any number) of service members have found themselves surrounded and without hope of rescue or support, then most likely:
Someone screwed up bad, in which case that’s going to be plenty of fodder for charges if such a thing is desired, and it would be easy to understand why someone in command in such a situation would allow their ego to think surrender is not an option.
The opposing forces being faced in dire situations lately, even at the individual level, will not be the sort that one would want to surrender to. I mean, the Iraqi military, maybe, but ISIS or some other insurgent group? Hell no I’m not going to help them make a video of them sawing my head off or burning me alive!
So, between otherwise innocent examples of being overwhelmed and encircled diminishing (and by innocent, I mean any potentially criminal errors in decision making that led to the possible surrender/capture scenario occurred well above the level of the person faced with contemplating surrender); with US forces for the bulk of the last 20 years in particular not necessarily even having the option to surrender and expect to come out better than thy would fighting to the death, with or without charges; and with the general culture of non-representative groups of mostly men who are self-selecting and perhaps predisposed to assuming a “warrior” ethos (much as I hate that descriptor, that’s in part because so many will casually self-describe as “warrior,” even if their job has entailed doing nothing of the sort and they have never once deployed to a war zone), it’s easy to see how some might (erroneously) arrive at the conclusion that the US armed forces are prohibited from surrender. Because in as much as such a conclusion is ahistorical and not supported by law, a large number of people who make up our armed forces are the sort who (1) seek out history that would affirm, rather than challenge, their beliefs and predispositions, and (2) aren’t really interested in the finer details of law, especially when it comes to imagining what they’d do in a fantasy scenario that they will likely never face.
In the case of Wendel Fertig, cited above, I note that he disobeyed a number of other orders that were unambiguously valid and legal, such as the order to not engage Japanese forces at all in favor of exclusively using his guerillas for surveillance. The fact that he was so successful in his disobedience of that order was doubtless a factor in why he was never disciplined for it.
In some of the incidents cited upthread, a group was surrendered and some members subsequently escaped. I was taught that the best opportunity for escape is immediately after capture. So, individuals who escaped even during the process of surrender did not violate the surrender order. They had ceased combat, surrendered and then escaped.
The OP addresses the case of an individual soldier disobeying a direct order to cease fire and lay down arms. I suspect cases of individual troops refusing such an order are very rare. In the event the individual would likely be restrained by other members of his squad. Deliberate or ignorant acts by individuals in combat are too fleeting to warrant prosecution.
Prosecution might result if an individual soldier refused the order to surrender and fired on the enemy with a victorious result. In that case citation is more likely than prosecution. If he fired on the enemy and failed, he probably would not survive. Hence, no prosecution.