Table of contents:
P.26. Evidence inferred from an utterance, a document or a deed.
P.26.1. Evidence of brutal mistreatment.
P.26.4. Evidence of killing wilfully.
P.26.5. Evidence of a summary execution.
P.26.6. Evidence of stabbing to death.
P.26.7. Evidence of ordering to refrain from protecting a prisoner from being shot.
P.26.8. Evidence of ordering a summary execution.
P.26.9. Evidence of ordering the shooting of survivors on a sunken ship.
P.26.10. Evidence of ordering to give no quarter.
P.26.11. Evidence of re-issuing superior orders to kill the adversary after capture.
Element:
P.26. Evidence inferred from an utterance, a document or a deed.
P.26.1. Evidence of brutal mistreatment.
A. Legal source/authority and evidence:
Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-T, Judgement (TC), 31 March 2003, para. 238:
"238. [ ]. Detained BH Muslim civilians and BH Muslim soldiers hors de combat were often subjected to humiliating and brutal mistreatment by soldiers who had unfettered access to the detention facilities."
A. Legal source/authority and evidence:
Trial of Helmuth Von Ruchteschell, LRTWC, UNWCC, Vol. IX, p. 82:
"The Prosecution alleged that the Davisian, a British merchant vessel, was attacked in daylight, without warning, by a German armed raider commanded bby the accused on 10th July, 1940. The attacker destroyed her wireless aerial with his first salvo. He maintained heavy fire for about five minutes and then signalled "use your radio not". The captain of the Davisian stopped his engines, hoisted an answering pennant and acknowledged the signal. In spite of this, the raiders firing continued for 15 minutes, wounding 8 or 10 of the crew of the Davisian, whilst they were trying to abandon the ship. The crew were later picked up by the raider."
P.26.4. Evidence of killing wilfully.
A. Legal source/authority and evidence:
Trial of Peter Back, LRTWC, UNWCC, Vol. III, p. 60:
"It was charged that Peter Back, a German civilian, "did, at or near Preist, Germany, on or about 15th August, 1944, violate the laws and usages of war by wilfully, deliberately and feloniously killing an American airman, name and rank unknown, a member of the Allied Forces, who had parachuted to earth at said time and place in hostile territory and was then without any means of defence.""
P.26.5. Evidence of a summary execution.
A. Legal source/authority and evidence:
The Dreierwalde Case, LRTWC, UNWCC, Vol. I, p.82-83:
"[ ]. After going about a mile and a half the party turned on to a track leading into a wood. Here, despite the fact that the prisoners were proceeding with decorum, the three N.C.O.s, including Amberger, began firing on them. All were killed except Flight-Lieutenant Berick, who escaped, though wounded. The case for the Prosecution was that the prisoners made no attempt to escape, and that the shooting was cold and calculated murder."
Trial of Robert Wagner, LRTWC, UNWCC, Vol. III, p. 32-33:
"[ ] He had then followed the procession in his car, had taken each prisoner separately to the banks of the Rhine and had shot them with his own mitraillette, which he declared to have always carried with him. The bodies of the murdered men were thrown into the river. Grüner withdrew part of his admission during his interrogation saying that the actual shots had been fired by another person ;[ ]"
P.26.6. Evidence of stabbing to death.
A. Legal source/authority and evidence:
The Jaluit Atoll Case, LRTWC, UNWCC, Vol. I, p. 72:
"The charge against the accused [ ] was one of murder. The specification stated that they "did, on or about 10th March, 1944, on the Island of Aineman, Jaluit Atoll, Marshall Islands, at a time when a state or war existed between the United States of America and the Japanese Empire, wilfully, feloniously, with malice aforethought without justifiable cause, and without trial or other due process, assault and kill, by shooting and stabbing to death, three American fliers, then and there attached to the Armed forces of the United States of Americain, and then and there captured an unarmed prisoners of war in the custody of the said accused, all in violation of the dignity of the United States of America, the International rules of warfare and the moral standards of civilised society".
P.26.7. Evidence of ordering to refrain from protecting a prisoner from being shot.
A. Legal source/authority and evidence:
The Essen Lynching case, LRTWC, UNWCC, Volume I, p. 88:
"Heyer, a Captain in the German Army, gave instructions that a party of three Allied prisoners of war were to be taken to a Luftwaffe unit for interrogation. He ordered the escort not to interfere if civilians should molest the prisoners, while also saying that they ought to be shot, or would be shot. A German private was charged with having refrained from interfering with a crowd which murdered the prisoners, although entrusted with their custody. The remaining accused were German civilians who were alleged to have committed the killing. Heyer and one civilian were sentenced to death. The private and two further civilians were sentenced to terms of imprisonment. The remaining two civilians were acquitted."
P.26.8. Evidence of ordering a summary execution.
A. Legal source/authority and evidence:
The Dostler Case, LRTWC, UNWCC, Vol. I, p. 23:
"Anton Dostler was charged with violations of the laws of war in that, as commander of the 75th German Army Corps, he, on or about 24th March, 1944, in the vicinity of La Spezia, Italy, ordered to be shot summarily a group of United States Army personnel consisting of two officers and 13 enlisted men, who had then recently been captured by forces under General Dostler, which order was carried into execution on or about 26th March, 1944, resulting in the death of the said 15 members of the United States Army."
P.26.9. Evidence of ordering the shooting of survivors on a sunken ship.
A. Legal source/authority and evidence:
The Peleus Trial, Trial of Kapit?nleutnant Heinz Eck and Four Others for the Killing of Members of the Crew of the Greek Steamship Peleus, Sunk on the High Seas, LRTWC, UNWCC, Vol. I, p.3, 16:
"[ ]the accused captain of the U-boat, Eck, had ordered the shooting and the throwing of hand grenades at the rafts and the floating wreckage". [ ]
[The Judge Advocate went on to refuse the defence of operational necessity]:
"The case contains, therefore, no decision on the question whether or to what extent operational necessity legalizes acts of cruelty such as shooting at helpless survivors of a sunken ship because on the facts of the case this behavior was not operationally necessary, i.e. the operational aim, the saving of ship and crew, could have been achieved more effectively without such acts of cruelty."
Trial of Helmuth Von Ruchteschell, LRTWC, UNWCC, Vol. IX, p. 82:
"The Prosecution alleged that the Davisian, a British merchant vessel, was attacked in daylight, without warning, by a German armed raider commanded bby the accused on 10th July, 1940. The attacker destroyed her wireless aerial with his first salvo. He maintained heavy fire for about five minutes and then signalled "use your radio not". The captain of the Davisian stopped his engines, hoisted an answering pennant and acknowledged the signal. In spite of this, the raiders firing continued for 15 minutes, wounding 8 or 10 of the crew of the Davisian, whilst they were trying to abandon the ship. The crew were later picked up by the raider."
P.26.10. Evidence of ordering to give no quarter.
A. Legal source/authority and evidence:
The Abbaye Ardenne Case. Trial of S.S. Brugadefuhrer Kurt Meyer, Canadian Military court, Aurich, Germany, 10th-28th, December 1945, p.101-102 and 109:
"The fourth of the witnesses [ ] told how the accused had made a speech at Le Sap, in which he had said that the German soldiers should take reprisals on prisoners of war. (Under cross-examination, however, the witness confessed that the accused used the word "Englishmen"" not "prisoners," but he claimed that the speech was so worded that it was understood that no prisoners were to be taken, but should be shot)".
[ ]
"It is a well-established rule of customary International Law that unarmed prisoners of war are not to be shot or deliberately harmed, and this provision has received recognition in various international conventions, which were referred to by the Prosecutor in his opening address."
Guéna?l Mettraux, US Courts-Martial and the Armed Conflict in the Philippines (1899-1902): Their Contribution to National Case Law on War Crimes, Journal of International Criminal Justice 1 (2003), 135-150, p.139, 141:
"[General Smith] was duly charged with the relatively benign offence of conduct to the prejudice of good order and military discipline for issuing such orders and tried before a general court-martial at Manila from 24 April until 3 May 1902 under the following specification10 :
"10Excerpts of General Smiths court-martial are re-printed in Friedman, The Laws of War, Vol. I, 799 et seq. Trials Records, 3".
P.26.11. Evidence of re-issuing superior orders to kill the adversary after capture.
A. Legal source/authority and evidence:
Trial of Generaloberst Nickolaus Von Falkenhorst, British Military Court, Brunswick 29th July 2nd August, 1946, Law Reports of Trials of War Criminals, UNWCC, Vol.XI, 1949, p.18, 22:
"1st Charge : [ ]in an order dated on or about 26th October, 1942, in violation of the laws and usages of war, incited members of the forces under his command not to accept quarter or to give quarter to Allied soldiers, sailors and airmen, taking part in Commando Operations, and, further, in the event of any Allied soldier, sailor or airman taking part in such Commando Operations being captured, to kill them after capture".
[ ]
"[ ]The defendant received the Commando Order and the Supplentary Order [issued by Hitler] on or about 24th October, 1942, whereupon he re-issued the order himself. [ ]. The re-issuing of the Commando Order formed the subject matter of the first charge against the defendant."
