Table of contents: 6.b.ii. [Mental element for Element 3] [Consequence of killing or wounding:] The perpetrator was aware that death or wounding would occur in the ordinary course of events. P.28. Evidence inferred from an utterance, a document or a deed. P.28.1. Evidence of ordering to refrain from protecting a prisoner from being shot. P.28.2. Evidence of ordering a summary execution. P.28.3. Evidence of ordering the throwing of grenades. P.28.4. Evidence of ordering the shooting of survivors on a sunken ship. P.28.5. Evidence of ordering to give no quarter. P.28.6. Evidence of ordering soldiers to be harsh. P.28.7. Evidence of re-issuing superior orders to kill the adversary after capture. P.29. Evidence inferred from a circumstance. Element: 6.b.ii. [Mental element for Element 3] [Consequence of killing or wounding:] The perpetrator was aware that death or wounding would occur in the ordinary course of events. P.28. Evidence inferred from an utterance, a document or a deed. P.28.1. 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.28.2. 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.28.3. Evidence of ordering the throwing of grenades. 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". [​] 25 Sep 2021 Page 1 of 3 P.28.4. 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 raider​s 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.28.5. 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 Smith​s court-martial are re-printed in Friedman, The Laws of War, Vol. I, 799 et seq. Trials Records, 3". P.28.6. Evidence of ordering soldiers to be harsh. 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, 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 25 Sep 2021 Page 2 of 3 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." Note: The indictment against the German Major Criminals charged the Commander-in-chief U-boats, Grand Admiral Doenitz, with the issuing of the Laconia Order. However the International Military Tribunal decided that the orders were "undoubtedly ambiguous" and were not deliberate orders for the killing of shipwrecked survivors. P.28.7. 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." P.29. Evidence inferred from a circumstance. 25 Sep 2021 Page 3 of 3.