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Chennault and the Flying Tigers (part 2)

Under the Laws of War lawful combatants are privileged to engage in combat. Their acts, conducted in accordance with those laws, are not crimes in either their own country or that of an adversary. A lawful combatant who is captured is entitled to become prisoner of war. He may not be tried by the capturing force and is entitled to certain humane standards of treatment. On the contrary those who "take up arms" unlawfully and commit acts of violence are subject to criminal prosecution and, if captured, are not entitled to prisoner of war status.

Lawful combatants include members of national armies. "The laws, rights and duties of war apply_also to militia and volunteer corps, fulfilling" certain conditions. It appears fairly clear that the Flying Tigers were neither members of the Chinese army (air force) nor the American armed forces. If they were eligible to be considered lawful combatants they would have to meet the criteria applicable to "volunteer corps." There are four applicable conditions. Arguably, the Flying Tigers met three of these: have a fixed and distinctive emblem; carry arms openly; and, conduct operations in accordance with the laws of war.

The fourth criterion (actually the first listed) is "To be commanded by a person responsible for his subordinates." Although, Chennault was ostensibly "commander" of the AVG, it is not clear from a legal perspective that he had any direct relationship to AVG personnel. They were employees of CAMCO. Chennault was an agent or employee of the Chinese government. CAMCO was an agent of the Chinese government but Chennault had no direct control over CAMCO and no employer-employee relationship with AVG personnel. He may have been the "real power" but he seems to have had no legal employment relationship much less a command relationship.

Even if Chennault was considered to have a direct relationship with the personnel of the Flying Tigers, it was one based on contract. The official view of the International Committee of the Red Cross (the agency that administers the Geneva Conventions) is that contractors are not "responsible" for their employees in the sense the Conventions require, nor is any contractor a party to the Conventions. That Chennault was not concerned with such niceties is reinforced by the fact that after being re-called to active duty in the U.S.A.A.F. he appointed a civilian contractor (Curtis Smith) as the first "commander" of the U.S. 23rd Fighter Group.

Civilian contractors that accompany a military force may also be entitled to prisoner of war status if captured, provided; they are non-combatants and comply with certain procedural requirements. It seems doubtful that the applicable procedural requirements were followed by the A.V.G. Chennault obviously considered the organization and its members combatants. That was their purpose in coming to China.

The conclusion seems inescapable that the members of the Flying Tigers were civilian contractor employees. Though "volunteers" they were not responsible to any commander in the Chinese Air Force. As such, when they engaged in combatant activities they did so contrary to international law. They were not entitled to prisoner of war status if captured and any acts of death or destruction committed by them could properly be considered criminal acts.

As established above, Chennault was a retired regular officer. He was also a well-paid advisor to Chaing Kai-Shek, the ruler of China and head of its government. Thus, Chennault received money from, and, held a position in the Chinese government. Many years later, the Judge Advocate General of the U.S. Air Force was to rule that a retired regular officer who received retired pay, held an "office" in the United States Government. In the same opinion it was ruled that accepting a position as a pilot for a Saudi Prince would constitute employment by a foreign state. Based on those findings, it was concluded such employment ran afoul of the Constitutional prohibition that "... no person holding any office of trust or profit under [the United States], shall, without the consent of Congress, accept any present, emolument, office, or title, of any kind whatsoever, from any, ... foreign state". The term emolument was deemed broad enough to encompass pay for services as an employee (similar conclusions have been reached in other opinions). The facts of Chennault's case seem to fit closely.

IV. Conclusion

Lawyers from the Departments of State or War, with the mentality of those there today, ruling on Chennault's activities in China from 1937-1941, would have objected to his activities rather than supported them. Current lawyers from the Department of Defense (then separate departments of War and Navy), given the current track record, would never have allowed the recruitment of army or navy pilots for the AVG. The most effective fighting force in the Far East in the early days of the war against Japan would never have existed if current legalistic / bureaucratic views had then prevailed. Congress, then and now, may deserve some blame but primarily it is the current interpretation of law and legalistic application of law that serves as the basis for questioning geo-political practice and military operations, which when questioned, should be judged in terms of substantial (rather than technically narrow) compliance with applicable law and effectiveness. Given the conclusions of this obviously limited study, had current media, political and legal standards applied to World War Two, the conflict might have been lost, or, at a minimum, the legitimacy of the Allied cause cast into doubt.