bf109 emil -- You asked: (1)
the perhaps last question, is being liable to criminal prosecution I understand, but prosecution by which countries court and under which rules...I.e. now that a subject can be tried, does this give any country the right to try and convict those sought as responsible??
(a) As I understand it, the pre-WWI general rule was that a person who committed a war crime could be prosecuted by the injured country – in other words, if a German subject like August Kobus killed an American pilot, the US could prosecute Herr Kobus for the crime if it could catch him:
369. Hostilities committed by individuals not of armed forces. -- Persons who take up arms and commit hostilities without having complied with the conditions prescribed for securing the privileges of belligerents, are, when captured by the enemy, liable to punishment for such hostile acts as war criminals.
US FM 27-10 (1914)
The same rule was used in US FM 27-10 (1940)
(b) However, even before WWI, some war crimes were considered so reprehensible that the perpetrators were considered outlaws whom anyone could put on trial, or even execute summarily – like pirates, for example, who had been regarded as enemies of mankind (hostis humani generis
) since Roman times. Anyone who caught them could punish them:
Art. 82. Men, or squads of men, who commit hostilities, whether by fighting, or inroads for destruction or plunder, or by raids of any kind, without commission, without being part and portion of the organized hostile army, and without sharing continuously in the war, but who do so with intermitting returns to their homes and avocations, or with the occasional assumption of the semblance of peaceful pursuits, divesting themselves of the character or appearance of soldiers - such men, or squads of men, are not public enemies, and, therefore, if captured, are not entitled to the privileges of prisoners of war, but shall be treated summarily as highway robbers or pirates.
US General Orders No. 100 (1863)
The rules for that sort of person were the same up until at least 1914. See par. 371, US FM 27-10 (1914), which reproduces Article 82 of the 1863 General Orders. By 1940, the US required such persons be given trials before they were punished (FM 27-10 , par. 351).
It's an interesting question as to whether Burgomeister Kobus fell into this category.
(c) During WWI, in 1915, Great Britain and France decided that persons who committed crimes against humanity – like Turkish officials who supervised the Armenian massacres – fell into this category. The two countries sent diplomatic notes to the Ottoman Empire declaring their intention to put the perpetrators of the Armenian massacres on trial, whether or not the massacres involved British or French victims.
This rule still applies to certain crimes – such as genocide – but a trial is required before the war criminal is punished.
(d) After WWII, the major allied countries – at least the US and UK – used this theory and took the position that they could prosecute German nationals and others for mistreating allied nationals. There was a backup theory as well – Germany had surrendered unconditionally, and its government had been extinguished and replaced by the allied occupation. Under this theory, the US, UK, France and the USSR had stepped into the shoes of the former German government, and could use German domestic law to prosecute war criminals who had gone unpunished under the 3rd Reich.
(2) You also wrote:
I am not trying to argue Kobus's innocents, but maybe the validity of another trying him, and a Burgomeister's ability to refuse an order without a reprisal towards him...indeed if this is the case then and Kobus could have refused without a German reprisal on him, yes I agree, but if he'd have been shot by a German refusal of an order, likewise shot for carrying out said order...it almost sounds like something my deceased father used to say..."damned if he don't, Damned if he does!
If Burgomeisters were punished for ignoring the order to kill, or get others to kill downed allied aviators, there might be a possibility of a defense of coercion. However, I haven't seen any evidence that Burgomeisters were killed for ignoring such an order.