Table of contents:
P.39. Evidence inferred from a utterance, a document or a deed.
P.39.1. Evidence of a declaration or an order or order to leave no survivors.
P.39.2. Evidence of a declaration or an order to kill all persons.
P.39.4. Evidence of a declaration or order to take no prisoner.
P.39.5. Evidence of a declaration or an order to kill prisoners.
P.39.6. Evidence of a declaration or an order to take reprisals on prisoners.
P.39.7. Evidence of a declaration or an order to kill the adversary after capture.
P.39.8. Evidence of a declaration instructing troops to refuse surrenders.
P.39.9. Evidence of an order or declaration to kill surrenders.
P.39.11. Evidence of a declaration or an order to kill the wounded.
P.39.12. Evidence of a declaration or an order to leave surrenders to a foreseeable death.
P.39.13. Evidence of a declaration or an order to not retrieve wounded persons.
P.39.14. Evidence of a declaration or an order to not provide appropriate medical aid to surrenders.
Element:
6.a. [Mental element for Element 3] [Conduct of declaring or ordering:] The perpetrator meant to declare or order that there shall be no survivors.
P.39. Evidence inferred from a utterance, a document or a deed.
P.39.1. Evidence of a declaration or an order or order to leave no survivors.
P.39.2. Evidence of a declaration or an order to kill all persons.
A. Legal source/authority and evidence:
Knut Dörmann, Elements of War Crimes under the Rome Statute of the International Criminal Court (2005), p.247:
[ ] the Karl Strenger and Benno Crusius case4 from after the First World War is of some interest. One accused was charged with having issued an order to the effect that all prisoners and wounded were to be killed. The alleged orders were:
4 Karl Strenger and Benno Crusius Case, in C. Mullins, The Leipzig Trials: An account of the War Criminals and a Study of the German Mentality (H.F. and G. Witherby, London, 1921), p. 115 ff.
5 Ibid., p. 152.
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 Manilla 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.
[B. Evidentiary comment:]
A. Legal source/authority and evidence:
Otto Triffterer, ed, Commentary on the Rome Statute of the International Criminal Court (1999), chapter 8, para. 136:
The prohibition to declare that no quarter shall be given thus also means that parties to a conflict forgo using [weapons] in such a way that it would amount to a refusal to give quarter232, which however does not imply that any particular weapon would be prohibited per se. While the use of particular weapons or categories of weapons may amount amount to a war crime under article 8 para.2 (b) (xvii)-(xx), the prohibition of refusing quarter may thus be considered as complementing the principle which prohibits methods of warfare of a nature to cause superfluous injury or unnecessary suffering233. However, a commander has clearly no obligation to offer an opportunity to surrender before attacking adversary combatants if this would constitute an imporportional military disadvantage, such as when surprise or speed are essential for the success of an attack.
232J. de Preux, Article 40 Additional Protocol I, ICRC Commentary, margin No. 1598.
233See J. de Preux, supra note 232.
[B. Evidentiary comment:]
P.39.4. Evidence of a declaration or order to take no prisoner.
P.39.5. Evidence of a declaration or an order to kill prisoners.
A. Legal source/authority and evidence:
The Abbaye Ardenne Case. Trial of S.S. Brugadefuhrer Kurt Meyer, Canadian Military court, Aurich, Germany, 10h-28th, December 1945, Law Reports of Trials of War Criminals, UNWCC, Vol.IV, 1948, p. 101:
[ ] that in April 1944, a Company Sergeant Major had read to him and the rest of the .H.Q. Company, while on parade, certain secret orders, which the Company had had to sign, to signify that they understood them, and which included instructions that if prisoners were taken they were to be shot after interrogation.
Knut Dörmann, Elements of War Crimes under the Rome Statute of the International Criminal Court (2005), p.247:
[ ] the Karl Strenger and Benno Crusius case4from after the First World War is of some interest. One accused was charged with having issued an order to the effect that all prisoners and wounded were to be killed. The alleged orders were :
The accused was acquitted because it could not be proved that he gave this order.6
4 Karl Strenger and Benno Crusius Case, in C. Mullins, The Leipzig Trials: An account of the War Criminals and a Study of the German Mentality (H.F. and G. Witherby, London, 1921), p. 115 ff.
5 Ibid., p. 152.
6Ibid., p. 159.
[B. Evidentiary comment:]
P.39.6. Evidence of a declaration or an order to take reprisals on prisoners.
A. Legal source/authority and evidence:
The Abbaye Ardenne Case. Trial of S.S. Brugadefuhrer Kurt Meyer, Canadian Military court, Aurich, Germany, 10h-28th, December 1945, p. 101:
The forth 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).
[B. Evidentiary comment:]
P.39.7. Evidence of a declaration or an order 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:
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.
[B. Evidentiary comment:]
P.39.8. Evidence of a declaration instructing troops to refuse surrenders.
P.39.9. Evidence of an order or declaration to kill surrenders.
A. Legal source/authority and evidence:
Otto Triffterer, ed, Commentary on the Rome Statute of the International Criminal Court (1999), chapter 8, para. 135:
The actus reus will typically be fulfilled by a declaration that any bona fide surrender by the adversary be refused even if it would be reasonable to accept, and that adversaries proferring surrender be killed or left to a foreseeable death, for instance by not retrieving wounded or shipwrecked persons nor providing appropriate aid.231
231The Netherlands East Indies Statute Book Decree No. 44 of 1946 considered a war crime the refusal of aid or prevention of aid being given to shipwrecked persons, LAW REPORTS, Vol. XI, 94. [ ]. However, it is submitted that not giving quarter should be constructed narrowly with the exclusive meaning of leaving no survivors. Nevertheless, refusing quarter might be understood as referring to intending to cause death by refusing to give the conquered enemy shelter and human treatment, that is, not fulfilling the humanitarian obligations, for instance, to collect and to protect wounded, sick or shipwrecked, and, to the extent possible, to provide them with medical care.
[B. Evidentiary comment:]
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, British Military Court for the Trail of War Criminals held at the War Crimes Court, Hamburg, 17th-20th October 1945, Law Reports of Trials of War Criminals, UNWCC, Vol. I, 1947, 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.
[B. Evidentiary comment:]
P.39.11. Evidence of a declaration or an order to kill the wounded.
A. Legal source/authority and evidence:
Knut Dörmann, Elements of War Crimes under the Rome Statute of the International Criminal Court (2005), p. 247:
[ ] the Karl Strenger and Benno Crusius case4 from after the First World War is of some interest. One accused was charged with having issued an order to the effect that all prisoners and wounded were to be killed. The alleged orders were :
The accused was acquitted because it could not be proved that he gave this order.6
4 Karl Strenger and Benno Crusius Case, in C. Mullins, The Leipzig Trials: An account of the War Criminals and a Study of the German Mentality (H.F. and G. Witherby, London, 1921), p. 115 ff.
5 Ibid., p. 152.
6Ibid., p. 159.
[B. Evidentiary comment:]
P.39.12. Evidence of a declaration or an order to leave surrenders to a foreseeable death.
P.39.13. Evidence of a declaration or an order to not retrieve wounded persons.
A. Legal source/authority and evidence:
Trial of Karl-Heinz Moehle, British Military Court, Hamburg, 15th to 16th October, 1946, Law Reports of Trials of War Criminals, UNWCC, Vol. IX, 1949, p.75:
The accused was a Korvetten Kapitan in the German Navey and from September, 1942, to May, 1945, was the officer commanding the 5th U-boat Flotilla at Kiel. In this capacity it fell upon him to brief U-boat commanders prior to their going out on operational patrols. Part of this briefing though by no means the essential part which was of a technical nature was to acquaint the U-boat commanders with an order originating from the German U-boat Command. This order, called the Laconia Order, was issued on the 17th September, 1942. It was in the nature of a standing order which was read regularly to the U-boat commanders. They were never given to them in writing. According to the accused the order stated :
The accused agreed that these orders went much further than the previous standing orders which had been issued by the U-boat Command in 1939.
[B. Evidentiary comment:]
P.39.14. Evidence of a declaration or an order to not provide appropriate medical aid to surrenders.
A. Legal source/authority and evidence:
Otto Triffterer, ed, Commentary on the Rome Statute of the International Criminal Court (1999), chapter 8, para 135:
The actus reus will typically be fulfilled by a declaration that any bona fide surrender by the adversary be refused even if it would be reasonable to accept, and that adversaries proferring surrender be killed or left to a foreseeable death, for instance by not retrieving wounded or shipwrecked persons nor providing appropriate aid.22
231The Netherlands East Indies Statute Book Decree No. 44 of 1946 considered a war crime the refusal of aid or prevention of aid being given to shipwrecked persons, LAW REPORTS, Vol. XI, 94. [ ]. However, it is submitted that not giving quarter should be constructed narrowly with the exclusive meaning of leaving no survivors. Nevertheless, refusing quarter might be understood as referring to intending to cause death by refusing to give the conquered enemy shelter and human treatment, that is, not fulfilling the humanitarian obligations, for instance, to collect and to protect wounded, sick or shipwrecked, and, to the extent possible, to provide them with medical care.
[B. Evidentiary comment:]
