“In the examination of the individual cases a distinction must be made between the cases of lynching and the cases of special treatment by the SD.
“I. In the cases of lynching, the precise establishment of the facts involving punishment, according to points 1 through 4 of the communication of 15 June, is not very essential. First, the German authorities are not directly responsible, since the death will have occurred before a German official becomes concerned with the case. Furthermore, the accompanying circumstances will be such, that it will not be difficult to represent the case in an appropriate manner upon publication. Hence, in cases of lynching it will be of primary importance correctly to handle the individual case upon publication.
“II. The suggested procedure for special treatment by the SD, including subsequent publication, would be feasible only if Germany would at the same time openly repudiate the commitments of international law, at present in force and still recognized by Germany. When an enemy aviator is seized by the Army or by the Police and is delivered to the reception camp for aviators at Oberursel, he has acquired by this very fact the legal status of a prisoner of war.
“The Prisoner-of-War Agreement of 27 July 1929 established definite rules for the prosecution and sentencing of prisoners of war and the execution of the death penalty, as for example in Article 66: Death sentences may be carried out only 3 months after the Protecting Power has been notified of the sentence. In Article 63: A prisoner of war will be tried only by the same courts and under the same procedure as members of the German Armed Forces. These rules are so specific that it would be futile to try to cover up any violation of them by clever wording of the publication of an individual incident. On the other hand, the Foreign Office cannot recommend on this occasion a formal repudiation of the Prisoner-of-War Agreement.
“An emergency solution would be to prevent suspected enemy fliers from ever attaining a legal prisoner-of-war status, that is, that immediately upon capture they be told that they are not considered prisoners of war but criminals, that they would not be turned over to the agencies having jurisdiction over prisoners of war, hence not go to a prisoner-of-war camp, but that they be delivered to the authorities in charge of the prosecution of criminal acts, and that they be tried in summary proceedings. If the evidence at the trial should reveal that the special procedure is not applicable to a particular case, the fliers concerned may subsequently be given the status of prisoner of war by transfer to the reception camp for aviators at Oberursel.