US Pilot/POW reported killed 1945 Germany

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Re: US Pilot/POW reported killed 1945 Germany

Post by mcb » 06 Aug 2009 16:26

bf109 emil wrote:David I read your report listed above, and thought this info might be pertinent showing the orders from OKH as to the directives behind the killing of not just US Pilot but term terror flier...
As you expressed interested in the trial, I briefly mentioned it in this recent video:

http://recordatio.com/link/video-sic2009

(If it asks for a password, enter "sic" - without quotes.)

You may also be interested in Volume VIII of Nazi Conspiracy and Aggression, published in 1946. If you are patient, you can generally find good deals on used copies on Amazon or eBay. The whole topic was given a lot of attention during the post-war trials. You can download the book as a PDF as well:

http://www.loc.gov/rr/frd/Military_Law/ ... iracy.html

Mike

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Re: US Pilot/POW reported killed 1945 Germany

Post by bf109 emil » 06 Aug 2009 18:06

mcb thank you for posting these links and I will take a look at them... The trial posted by David against August Kobus a burgomeister, i have one question...I linked Kaltenbrunner order for reprisals to enemy fliers. I also assume even if it wasn't a balid defense, Kobus was acting on the orders which I sourced as to reprisals to be taken action toward what was now deemed terror fliers...My question is this, and albeit a definite answer may never be found...but none the less i will still ask.

-If Kobus had captured a downed flier and had taken no action against him after receiving the order from Kaltenbrunner as to the method they where to be treated. Would he have been tried or labeled a "trader/collaborator/defeatest" by the Third Reich and subsequently summary executed for being deemed or touted as such?

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Re: US Pilot/POW reported killed 1945 Germany

Post by David Thompson » 07 Aug 2009 23:36

An interesting essay on the subject:

Obedience to Orders as a Defense to a Criminal Act (1971)
http://www.loc.gov/rr/frd/Military_Law/ ... orders.pdf

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Re: US Pilot/POW reported killed 1945 Germany

Post by bf109 emil » 08 Aug 2009 07:28

David...I found something interesting on page 32
Violations of rules regarding warfare are
war crimes only when committed~ without an order
of the belligerent Government concerned. If
members of the armed forces commit violations
by order of their Government, they are not war
criminals and cannot be punished by the enemy;
the l a t t e r can, however, resort to reprisals.
In case members of forces commit violations
ordered by their commanders, the members may
not be punished, for the commanders are alone
responsible, and the l a t t e r may, therefore, be
punished as war criminals on their capture by
the enemy.25
sourced from
5 Y .Dinstein, supra at 124-12 ; L. Oppenheim, International
LAW A Treatise, vol. 11, 26 2 -265 (1st ed., 1906)

from what i read here is an order given by a superior to commit a war crime...such as the orders i listed that Kaltenbrunner issued, states that because August Kobus acted on such orders, he cannot punished as the commanders alone, or those who issued the order are responsible??

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Re: US Pilot/POW reported killed 1945 Germany

Post by mcb » 08 Aug 2009 10:20

bf109 emil wrote:states that because August Kobus acted on such orders
This may be common in war crimes trials even in more recent decades, but in this specific trial I cannot recall any such statement. The defense tried to claim that there were local decisions, both general (from prior meetings) and specific (an order via phone to kill the prisoner), but ultimately they failed to prove this, and even the superior who had been alleged to have given such orders won the appeal case. The trial had lots of witnesses and chances for debate, and it all went against the mayor. Maybe we will never know if there was an order from his local superior or not (this alleged order by phone was the main point of the defense). Maybe the defense could have tried to more explicitly make the point you are raising, and it would be interesting to see if others elsewhere had success at this. But this trial concluded that there were no local directives, and no local orders.

It's very hard to reinterpret or judge the trial or the people now. Even for the children who were told to spit at the pilot it is difficult today to recollect the feelings, or give a meaning to it all. But I can tell you that this mayor had a history of abuse of power that spoke against him. Nobody ever ordered him to arrest my grandmother (a mother with children whose husband was at the front) because she said "Hello" instead of "Heil Hitler" when entering the butcher's, or would have retaliated against him if he hadn't, yet he did things like this, over and over again, not just once, and not just because there was anger towards Allied airmen, or orders from Berlin. On that afternoon of April 16, 1945, he didn't want the pilot to be brought to the town infirmary, and he didn't want him to be buried properly. Even after others had decided for a transport to a nearby hospital, he managed to intervene and convince the young driver to do otherwise, which led to the killing in the woods.

I think I understand the case you are trying to make, but maybe this is not the best trial you can find to bring this theory forward. If you have the time, watch the video linked above in this thread, it may clarify a few things from the past, and the humble work still in progress.

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Re: US Pilot/POW reported killed 1945 Germany

Post by David Thompson » 08 Aug 2009 15:45

bf109 emil -- You wrote:
David...I found something interesting on page 32
Violations of rules regarding warfare are war crimes only when committed without an order of the belligerent Government concerned. If members of the armed forces commit violations by order of their Government, they are not war criminals and cannot be punished by the enemy; the latter can, however, resort to reprisals. In case members of forces commit violations ordered by their commanders, the members may not be punished, for the commanders are alone responsible, and the latter may, therefore, be punished as war criminals on their capture by the enemy.25
sourced from 5 Y .Dinstein, supra at 124-12 ; L. Oppenheim, International LAW A Treatise, vol. 11, 26 2 -265 (1st ed., 1906)
And then asked:
from what i read here is an order given by a superior to commit a war crime...such as the orders i listed that Kaltenbrunner issued, states that because August Kobus acted on such orders, he cannot punished as the commanders alone, or those who issued the order are responsible??
Mr. Oppenheimer's point of view was controversial when he wrote that passage in 1906 (before the 1907 Hague IV convention), and hotly contested by other commentators. The passage is misleading, in that it fails to mention the longstanding majority view --the defense of superior orders is not available where the person carrying out the orders knew or had reason to know that the order was illegal.

Note that, on the very next page of the linked article, it says that a later edition of Oppenheimer's work withdrew his statement as inaccurate:
When the sixth edition was published, in 1940, having been revised by Lauterpacht, the original passage was altered as follows:
The fact that a rule of warfare has been violated in pursuance of an order of the belligerent Government or of an individual belligerent commander does not deprive the act in question of its character as a war crime; neither does it, in principle, confer upon the perpetrator immunity from punishment by the injured belligerent. A different view has occasionally been adopted by writers, but it is difficult to regard it as expressing a sound legal principle.
Obedience to Orders as a Defense to a Criminal Act (1971)
http://www.loc.gov/rr/frd/Military_Law/ ... orders.pdf

See also Conference of Paris Commission on Responsibilities, Violation of the laws and customs of war; reports of majority and dissenting reports, Clarendon Press, Oxford: 1919, pp. 19-20:
All persons belongs to enemy countries, however high their position may have been, without distinction of rank, including Chiefs of States, who have been guilty of offences against the laws and customs of war or the laws of humanity, are liable to criminal prosecution.
http://www.archive.org/details/violatio ... 00pariuoft

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Re: US Pilot/POW reported killed 1945 Germany

Post by bf109 emil » 08 Aug 2009 20:03

David in correcting me, i can now see how this change doesn't protect Kobus from prosecution
All persons belongs to enemy countries, however high their position may have been, without distinction of rank, including Chiefs of States, who have been guilty of offences against the laws and customs of war or the laws of humanity, are liable to criminal prosecution.
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??

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!

mcb you wrote or asked
This may be common in war crimes trials even in more recent decades, but in this specific trial I cannot recall any such statement. The defense tried to claim that there were local decisions, both general (from prior meetings) and specific (an order via phone to kill the prisoner), but ultimately they failed to prove this
also
I think I understand the case you are trying to make, but maybe this is not the best trial you can find to bring this theory forward.
I wasn't trying to make a case for Kobus innocent, nor find a case where maybe a reprisal was at fault...I was wondering overall if a none member of the military had to follow a basic military order which might have him be held accountable for...a thin line, very thin, but maybe a line all the same...I understand as you say Kobus couldn't prove the order to take reprisals on lynching airmen so he was found guilty, likewise, what if Kobus had scene or been issued these orders, which i will source for your reading and did indeed follow these, would the verdict against him have turned out different if he had a copy of these from Bormann and Kaltenbrunner and Wiebens and testified by Schellenberg said orders did exist and where executed....

The fact Kobus did lynch airmen i have no doubt, the changing of the status of what i posted and revised b y David i also now see...just to sum up was Kobus allowed to refute said order and was the USA legal in trying Kobus for carrying forward these ordershttp://library2.lawschool.cornell.edu/d ... airmen.pdf

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Re: US Pilot/POW reported killed 1945 Germany

Post by David Thompson » 08 Aug 2009 23:04

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)
http://avalon.law.yale.edu/19th_century/lieber.asp#sec4

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 [1940], 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.

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Re: US Pilot/POW reported killed 1945 Germany

Post by bf109 emil » 09 Aug 2009 05:01

David
but the order seems clearly unlawful to me. Why wouldn't such a killing be regarded as simple murder under the German criminal code?
I agree it does seem lawful, and likewise i agree it appears as simple murder, but likewise i think the gist of the order and the reasons it was issued and as to why Anglo-fliers are now to be deemed or sought/found as terror fliers a shaky excuse as for the German criminal code, would not the laws of the now empowered NSDAP and laws issued have been followed in German courts, whether seeming just or not?

likewise this order forbidding German soldiers from giving protection to allied airmen as well as forbidding them from taking prisonershttp://library2.lawschool.cornell.edu/d ... June44.pdf

But i think as to the question of the German criminal code, I ask you to look at the bottom few lines of this document captured by the British in regards to the Lynching of Allied airmen signed by Bormann and issued fromm the Fuehrers headquarters http://library2.lawschool.cornell.edu/d ... nching.pdf
which states "No police or criminal court proceedings are to be taken against members of the population, who have taken part in such lynchings"I think this might answer why the German criminal code failed nor acted on these killings

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Re: US Pilot/POW reported killed 1945 Germany

Post by David Thompson » 09 Aug 2009 05:06

bf109 emil -- You wrote:
But i think as to the question of the German criminal code, I ask you to look at the bottom few lines of this document captured by the British in regards to the Lynching of Allied airmen signed by Bormann and issued fromm the Fuehrers headquarters http://library2.lawschool.cornell.edu/d ... nching.pdf
which states "No police or criminal court proceedings are to be taken against members of the population, who have taken part in such lynchings"I think this might answer why the German criminal code failed nor acted on these killings
Truly. It also shows that because the lynchings would ordinarily be regarded as a criminal act, there had to be a non-prosecution order to encourage the criminal policy.

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Re: US Pilot/POW reported killed 1945 Germany

Post by bf109 emil » 09 Aug 2009 05:53

Truly. It also shows that because the lynchings would ordinarily be regarded as a criminal act, there had to be a non-prosecution order to encourage the criminal policy.
indeed and glad i could find this, but again with this being in the original; order say issued to Kobus and his worry of being prosecuted now absent for following a given order...and not to sound bias or insulting, but after reading hundreds of pages of Nuremberg documents, trials for war crimes, etc. it seems the whole "We where following orders" What could I do", "It wasn't my decision and had to follow as was Told" seems to follow the path taken by Kobus...hence I just wished he'd have been able to supply these orders prior, as I don't think he should have gotten off, yet there seems to be almost an ending to the case with his lynching where as the real root of the whole fiasco and pitiful extreme and vulgar action taken by Germany and it's leaders over this case and dealings seem to have been swept under the rug...on an off curiosity i also have to assume by the trial judges not believing Kobus of this order, other cases which might have been investigated had these orders been presented went untried/un looked into and other guilt parties or burgomeisters walked without repercussions or justice being done

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Re: US Pilot/POW reported killed 1945 Germany

Post by David Thompson » 09 Aug 2009 16:16

bf109 emil -- You remarked:
yet there seems to be almost an ending to the case with his lynching where as the real root of the whole fiasco and pitiful extreme and vulgar action taken by Germany and it's leaders over this case and dealings seem to have been swept under the rug...on an off curiosity i also have to assume by the trial judges not believing Kobus of this order, other cases which might have been investigated had these orders been presented went untried/un looked into and other guilt parties or burgomeisters walked without repercussions or justice being done
The US put people on trial in over 200 cases involving POW murders and mistreatment, and many of the trials had multiple defendants -- up to the level of NSDAP Gauleiter. For the most part, the high-level figures who survived the war and were involved in the actions, were convicted in the Nuernberg IMT trial and executed.

I haven't seen the figures for British trials, but I know there were scores of them, so I don't think it's accurate to say that "the real root of the whole fiasco and pitiful extreme and vulgar action taken by Germany and it's leaders over this case and dealings seem to have been swept under the rug..." As far as I can see the criminal policy was thoroughly aired in the IMT and subsequent trials, and from the number of lesser trials, I think the US and UK military was diligent in finding and putting on trial those persons who could be identified as participating in the lynchings.

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Re: US Pilot/POW reported killed 1945 Germany

Post by bf109 emil » 09 Aug 2009 18:52

I think the US and UK military was diligent in finding and putting on trial those persons who could be identified as participating in the lynchings.
Thank you, likewise for clearing up my narrow thought or view that maybe this was the only one involving citizens as opposed to say military ones...overall, after having myself read the lynching orders or reprisal orders and no prisoners where to be taken or helped by military persons I still find it disturbing an allied airmen, because of this might have had to fight civilians in order to ward of punishment or the rathe of angry citizens and thus he might to have been guilty or sentenced if/had he had to take action against towns people obviously angry/mad, no different i suppose then German aviators had been by angry British subjects during the BoB, the difference being he might have found protection from the home guard, etc.

Now it makes me wonder how many German civilians might have been injured from an allied airmen now having to defend himself, and tried for this because the Wehrmacht where instructed not to aid these fliers? Maybe a total different scene or topic, but had the boot been on the other foot, would German airmen have been tried for hurting British civilians if after there drifting to earth they where angrily attacked and defending oneself was the only answer? Thank heavens a similar order by Britain never was issued and it is a shame there was one by German high command!

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Re: US Pilot/POW reported killed 1945 Germany

Post by David Thompson » 09 Aug 2009 19:17

bf109 emil -- You wrote:
Now it makes me wonder how many German civilians might have been injured from an allied airmen now having to defend himself, and tried for this because the Wehrmacht where instructed not to aid these fliers?
If the allied airman still had his pistol, and hadn't surrendered, he wasn't a POW. All of the lynching cases I've ever read about involved allied airmen who had been captured and disarmed before they were killed. For some examples of how it happened, see:

Other War Crimes - Russelsheim Lynching Trial
http://forum.axishistory.com/viewtopic.php?t=16792
Other War Crimes - Gross Gerau Lynching Trial
http://forum.axishistory.com/viewtopic.php?t=16795

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Re: US Pilot/POW reported killed 1945 Germany

Post by bf109 emil » 09 Aug 2009 19:33

David thank you for the links and i will read them, also you wrote
If the allied airman still had his pistol, and hadn't surrendered, he wasn't a POW
Must have been hard for an allied pilot to turn over his firearm and surrender to become a POW when the Wehrmacht where ordered not to aid or take POW's though, even if a pilot wanted to do just this?

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