Looking for feedback on the downed pilot with a .22

In yesterday’s post about the proposed three-engine interceptor version of the A-5 Vigilante, I included the story of a recon Vigilante pilot shot down over Vietnam. I’ll repeat it here:

Only 9 of the 36 of the aircrew shot down were rescued, with others either killed or taken prisoner. In one case, the rescue was a grim adventure like something out of an action movie. Lieutenant JG Francis Prendergast was the back-seat RAN on an RA-5C that was shot down over North Vietnam on 9 March 1967. According to one version of the story (there are other versions that differ slightly in details), he was captured near the seashore by North Vietnamese militiamen, with two of them assigned to guard him. One was armed with a rifle, the other with Prendergast’s own 0.38-caliber revolver, standard equipment for aircrew and carried externally in a shoulder holster.

Prendergast carried the revolver with the first two chambers unloaded as a safety measure, and as a backup also had a small 0.22 caliber automatic pistol hidden inside his flight suit. When a rescue helicopter and support aircraft showed up, strafing drove off all the North Vietnamese except the guards, who felt safer staying with Prendergast than running for cover.

This proved a fatal mistake. While the two North Vietnamese were distracted by the noise and confusion, Prendergast pulled out the little automatic, cocked it, and shot the militiaman with the rifle in the head. The other militiaman tried to shoot Prendergast with the revolver, only to find that the hammer fell on an empty cylinder, and was shot himself an instant later. Prendergast swam out to the rescue helicopter and was retrieved.

I received this comment on the post:

If that’s an accurate description, it makes Prendergast a war criminal. He had surrendered, but then used violence from a non-combatant status.

First of all, this version of the account doesn’t say he “surrendered,” only that he was “captured.” If he was forcibly compelled to submit or taken while unconscious, for instance, does that affect his status as a prisoner?

In any event, does anyone have any other feedback on this? Should Pendergrast have been charged with war crimes?


  1. I had to scracth my first to posts on this; as I figured MOL didn’t subscribe to language like I was using. You correctly observe the account you cited states a capture took place, not a surrender. Even if he had surrendered where does it state you become a non combatant, and are proscribed from using violance? Even if some document or agreement we (the US) are signatories to, does state once you surrender, you’re a non combatant, and may not use violence………does that agreement have any force if the other party in the conflict is NOT a signatory to the agreement? Were the the US and NV signatories to any such agreement? PS: If I’d been Pendergrast; I’d have capped there @$$e$ too. Nuff said!

  2. MO, Whoever wrote that was either jerking your chain or dim. Servicemembers are obligated to try to escape, if it doesn’t put other prisoners in jeopardy. And as for the question about whether he should be charged with a war crime, well as you well know to some people any American servicemember who ever wore a uniform ever in the history of the nation is a war criminal, so…depends who you ask.

  3. I know the Code of Conduct was developed afterwards but that whole line of reasoning puts #3 into war-crimes territory. ‘If I am captured I will continue to resist by all means available. I will make every effort to escape and aid others to escape. I will accept neither parole nor special favors from the enemy.’ If that guy is a military lawyer, it would explain why we are prosecuting our own snipers etc. Lawyers have no place on the battlefield.

  4. It is your duty, to try to escape. It is your duty to fight the enemy. His captors were armed uniformed combatants. Even a lawyer would not make that argument. Only a fool would. PS I was in a rate that could only expect to be interrorgated then killed if captured. I have had officers from GC signitory nations state that fact. (USSR, Poland, etc)

  5. Let’s clear this up for everybody: While technically Prendergast was a POW (whether one surrenders or is captured is beside the point), he was not guilty of any war crime. Had he killed the guard and then not made good his escape, then he could have been tried for the murder of the guard. As a non-combatant (POW), he was technically out of the fight. Because he did make good his escape, and made it back to friendly lines, he cannot be held responsible for his actions during the escape, which in this instance included killing the guard. Make more sense now?

  6. Jerry has almost got to the truth. I see I shall have to clarify. All of these conventions assert that the detaining powers laws apply. Because of Prendergast’s non-combatant status, he was guilty of murder under Vietnamese law; technically, because of the coverage of the conventions, that made it a war crime. However, the Third Geneva Convention of 1949, article 3(1)(a) goes further, giving more force to murder in these circumstances. (Please don’t try and claim that this only applies to murder of POWs – it works both ways.) Regardless, the underlying issue – covered under the concept of ‘the laws and customs of war’ – goes back a lot further, to the idea of perfidy. Prendergast’s retaining a concealed weapon, knowing that his weapons should be given up, arguably qualifies as perfidy. (That ‘should’ is both from the conventions, and from being relieved of an obvious weapon.) I’m not just being pedantic and legalistic, I’m going somewhere with this. The whole point of enforcing this sort of thing is that it makes it possible to accept surrenders. Precisely in order to protect POWs, rather than having troops killed without the option of surrender, civilised powers even try their own men for this sort of thing. The usual result, of course, is either an acquittal, a small penalty, or a penalty followed by clemency – but always, the object of the exercise is to send a signal to the enemy that surrenders will be honoured and so on. Therefore, the USA should have court martialled Prendergast (and acted appropriately afterwards); courts martial show that justice is respected, even if people on the inside know there’s nothing to it, they should still go forward and show the world. How many downed airmen did Prendergast kill, from justice not being done? Of course, I have as much reason to expect the USA to try this sort of murderer as I have to expect it to honour its Status of Forces Agreements. However, whenever there is a violent incident where, say, a US serviceman injures an Australian civilian, the civilian is assured there will be a trial in the USA – but nothing happens, not even taking depositions (for instance, this happened in Queensland). Nevertheless, it is faulty policy not to keep to one’s word in these matters; people stop accepting it.

  7. Ignoring the tennis ball sized wart on the end of one’s nose; does not mean there isn’t a fairly obvious distinguishing physical characteristic (I hesitate to say defect, because some might hairsplit, or pick apart, my comment as being perjorative and harmful to the wart bearers self esteem and/or self image) . He didn’t surrender…………..he was captured; apparently making a decision to stop resisting/fighting to avoid maiming or death by the enemy. Further, when he decided to retain a covert weapon, to use if & when the time was right, he clearly indicates his mental state as not having surrendered to the enemy. When the time was right……….he continured the fight and returned to his own side; it so happened the covert weapon had to be used to facilitate the return to his side; if he’d been able to escape and return to his own side without using the weapon, but had done so gratuitous, or capriciously on someone not violently impeding his escape………….that would be murder. It wasn’t. Using the comparison of some criminal US citizen murdering the citizen of a friendly country as a comparison to Pendergrasts wartime experience in an active conflict; is a particularly apt argument, given your shaky and false premise of Pendergrasts having murdered anyone. Your point about criminal acts not being investigated, and punished if sustained is a valid one however. I’m sure the US is the only foreign power to have ever engaged in that type of behavior, and it’s only right you site just US (pun intended) as part of your support for your flawed argument. I am also particularly fond of your argument that Pendergrast’s actions may have killed other downed airmen. Why limit his responsibility for other’s actions to just killing airmen? Maybe they killed a number of other US military personnel (either the captured or surrendered variety, or who where just minding their own business on in country leave or other non violent activity), who were not ‘downed flyers’, like those bums in the army or navy, etc. Furthermore, the enemy should use the trauma of Pendergrast’s violent escape to justify killing any and all Americans where ever they may be found………you know, like in their workplace or perhaps a disco in Bali. While the legal profession is an old and justly honored one, the penchant for some in it to misapply law, rules, and agreements for purposes the rules were never intended for goes a long way to explain why ‘some’ lawyers are held in such esteem by many of the rest of us.

  8. I have to disagree with P.M. Lawrence on the issue of perfidy on the part of Pendergrast, although I realize it’s a thin line and we’ll just wind up splitting hairs about what does and does not constitute an act of treachery on the battlefield. In Pendergrast’s case, there was an active rescue operation underway, and while it is clear that the North Vietnamese had custody of him, it is less clear how much control they actually exerted. Just having somebody held immediately after his capture at gunpoint, with the eventual outcome of the situation still in doubt, means Pendergrast might not be considered a POW just yet. As for retaining the holdout weapon, it is not incumbent upon Pendergrast, or any other captured serviceman, to acknowledge or hand over such a weapon to his or her captors. It IS incumbent, however, upon the captors to conduct a thourough search of their prisoner. If they miss the weapon on their initial search, or they don’t even really search him at all except for the cursory relief of visible weapons, then that’s their tough luck. When the rescue aircraft appeared overhead, it’s clear it was ‘game on’ again, and the fact that the majority of the North Vietnamese fled the scene and abandoned Pendergrast and the other two would seem to indicate that they weren’t all that keen on putting up much of a fight to keep their prisoner. In fact, if the two captors decided to stick with Pendergrast in the hopes that staying with him was safer than fleeing, then in fact it is they who committed an act of perfidy, assuming they thought Pendergrast would be useful as a shield against any assault on their position.

  9. Prisoners can become combatants at will. They can still attack the enemy. The enemy can shoot them once they decide to become combatants by attempting to escape, or by attempting to kill enemy soldiers. They can only be tried for murder if the killing does not involve combat with the enemy or civilians aiding the enemy. A POW strangling a civilian camp worker for giggles is a murderer. A POW strangling a civilian camp worker so he cannot warn the guards of an escape attempt is a lawful combatant engaged in lawful combat. Since he is now a combatant, a guard could shoot him while in the act. If he surrenders, and they make a prisoner of him again instead of shooting him for being in the middle of an escape attempt, he cannot be tried for murder.

  10. Lawrence’s statement, that obtaining a concealed weapon is somehow ‘perfidious’, is fatuous. Prisoners have a duty to try to escape. They have a duty to try to become combatants again. Once it becomes clear that the pilot was armed, he became a combatant, and could then be shot at by the enemy. He could either win, die, or be wounded and captured again. Combatants shooting at the enemy during a war is not murder. Suggesting otherwise is just stupid. POW concentration camp guards are armed for a good reason. The POW can try to kill them at any time. They can be gunned down for making the attempt, but they can’t be tried as murderers if they live through it.

  11. I don’t know about the legal technicalities, but from an ethical viewpoint, Prendergast did nothing wrong. It is wrong to surrender with the intent of luring in the enemy in order to kill them. It is not wrong to be captured (or surrender) and then kill the enemy if the situation changes. As Jerry wrote above: ‘When the rescue aircraft appeared overhead, it’s clear it was ‘game on’ again’.

  12. Does your lawyerly assessment take into account that he, like all prisoners of North Vietnam, faced real torture and possible murder? I say he acted out of self-defense. Boy, Americans must be the most legalistic people on the planet. Get real. If that goes on, the country is going to put itself out of business.

  13. I think you’re not realizing an obvious opportunity here, El Gordo. What we need to do is supply each US soldier with his own personal, non-combatant (unarmed) lawyer. That way they can advise the soldier in what his legal options are and what move he can and cannot make in real time. It’s the best use I can possibly think of for a lawyer.

  14. Kristopher posted: ‘Combatants shooting at the enemy during a war is not murder. Suggesting otherwise is just stupid. POW concentration camp guards are armed for a good reason. The POW can try to kill them at any time. They can be gunned down for making the attempt, but they can’t be tried as murderers if they live through it.’ Actually, you are mistaken on that point. Pendergrast would probably qualify as an exceptional situation, considering the fluidity of the situation he found himself in. Again, while he had been captured, there was a lot going on around him, he was still armed, and many of the NV fled the scene when the rescue aircraft appeared. By the time you’ve reached a POW facility, and are acknowledged to be a POW and have been processed into such a camp, you are at that point considered to be a non-combatant. You have a duty, as a soldier, to try to resist and make good an escape if the opportunity presents itself, and as long as you are not disobeying orders from your own chain of command in the prison (yes, you can be court-martialed after repatriation for acts that occured during your captitivity, including insubordination). If you kill somebody while trying to escape, and fail in your attempt to escape, you can be tried for murder by the detaining power. That is spelled out clearly in the Law of Land Warfare. Now, if you make good your escape and make it back to friendly forces, you are in the clear; However, current policy would prohibit you from being sent back into that particular theater, simply because if you were to be captured again, it might not matter what the rules say. I won’t comment on El Gordo and Dfens comments too much, except to say there are prosecutable offenses that can occur during wartime, on both sides. Ignoring them or saying they don’t matter does not make it so. Something to bear in mind, and I fully expect Dfens to come back at me with some inane, smart ass remark. It seems to be his nature. BTW, Dfens, I presented your idea of insurgent busting sonic booms as a COIN tactic. They were intrigued, but they wanted more details. Should they use the sonic boom before they blow the shit out of an insurgent position, or after? Hey, what da’ ya’ know? Looks like I can be a bit of a smart ass, too…

  15. Out of interest… the person who decided to begin this debate… what would you have done in this situation? I guess it all boils down to a moral choice, and probably this would be dominant in a trial of this type. Knowing what one knew about the POW camps… It’s like if you had been a Jewish flyer in WW2 during the period where people learned of the concentration camps and crash landed. If you are so clued up about the legal issues, go out and fight a good battle and uphold true morality using your power.

  16. Trying a POW for killing a civilian during an escape hasn’t been tested yet. Hitler did offer to trade US POWs who committed crimes for German POWs who had committed crimes for trial in their home countries … Roosevelt’s government kept them in backchannel discussions until the war ended, in order to prevent such trials from happening in Germany. If I was defending such a POW, I would argue that the POW, whehn he decided to escape, was now a combatant, and the instant it became clear that the civilian would turn him in, that civilian became a legitimate military target. As for chain of command violations, not only do you have a duty to escape, but an order to surrender is one order you can always disobey.