Table of contents:
3. The perpetrator declared or ordered that there shall be no survivors.
3.1. The perpetrator declared that there shall be no survivors; OR
3.1.1. Evidence of a declaration that there shall be no survivors.
3.1.2. Evidence of a declaration instructing to keep no prisoners.
3.1.3. Evidence of a declaration that surrenders be killed or left to a foreseeable death.
3.2. The perpetrator ordered that there shall be no survivors.
3.2.1. Evidence of orders to leave no survivors.
3.2.2. Evidence of orders to keep no prisoners.
3.2.3. Evidence of orders that any survivor be killed or left to a foreseeable death.
Element:
3. The perpetrator declared or ordered that there shall be no survivors.
3.1. The perpetrator declared that there shall be no survivors; OR
"If an officer, thought not a participant in or present at the commission of a war crime incited, counselled, instigated or procured the commission of a war crime, and a fortiori, if he ordered its commission, he might be punished as a war criminal."[1]
"As it is an offence to deny quarter to prisoners I think an officer may be convicted of a war crime if he incites or counsels troops under his command to deny quarter, whether or not prisoners were killed as a result thereof. It would seem to be common sense to say that not only those members of the enemy who unlawfully kill prisoners may be charged as war criminals, but also any superior military commander who incites and counsels his troops to commit such offences."[2]
"There is no evidence that anyone heard any particular words uttered by the accused which would constitute an order, but it is not essential to that such evidence be adduced. The giving of the order may be proved circumstantially; that is to say, you may consider the facts you find to be proved bearing upon the question whether the alleged order was given, and if you find that the only reasonable inference is that an order that the prisoners be killed was given by the accused at the time and place alleged, and that the prisoners were killed as a result of that order, you may properly find the accused guilty...[B]efore the Court finds an accused person guilty on circumstantial evidence, it must be satisfied not only that the circumstances are consistent with the accused having committed the act, but that they are inconsistent with any other rational conclusion than that the accused was the guilty person."[3]
"[The Commando Order was] a clear and serious contravention of international law [...] combatants may only be killed or wounded if they are able and willing to fight and to resist capture. [...] Further such combatants as lay down their arms and surrender or do not resist [...] may neither be killed or wounded but must be given quarter. These rules are universally recognised."[4]
3.1.1. Evidence of a declaration that there shall be no survivors.
3.1.2. Evidence of a declaration instructing to keep no prisoners.
3.1.3. Evidence of a declaration that surrenders be killed or left to a foreseeable death.
3.2. The perpetrator ordered that there shall be no survivors.
3.2.1. Evidence of orders to leave no survivors.
3.2.2. Evidence of orders to keep no prisoners.
3.2.3. Evidence of orders that any survivor be killed or left to a foreseeable death.
Footnotes:
[1] Canadian Military Court, The Abbaye Ardenne Case, Trial of S.S. Brigadefuhrer Kurt Meyer, 10-28 December 1945, Law Reports of Trials of War Criminals, UNWCC, Vol. IV, 1948, p. 107 .
[2] Canadian Military Court, The Abbaye Ardenne Case, Trial of S.S. Brigadefuhrer Kurt Meyer, 10-28 December 1945, Law Reports of Trials of War Criminals, UNWCC, Vol. IV, 1948, p. 107.
[3] Canadian Military Court, The Abbaye Ardenne Case, Trial of S.S. Brigadefuhrer Kurt Meyer, 10-28 December 1945, Law Reports of Trials of War Criminals, UNWCC, Vol. IV, 1948, p.108.
[4] British Military Court, Trial of von Falkenhorst, 29 July-2 August 1946, Law Reports of Trials of War Criminals, UNWCC, Vol. XI, 1948, p.29.
