The treaty of Versailles
Part VII - Penalties
The Allied and Associated Powers publicly arraign William It of Hohenzollern, formerly German Emperor, for a supreme offence against international morality and the sanctity of treaties ; ... ]
The German Government recognises the right of the Allied and Associated Powers to bring before military tribunals persons accused of having committed acts in violation of the. laws and customs of war. Such persons shall, if found guilty, be sentenced to punishments laid down by law. This provision will apply notwithstanding any proceedings or prosecution before a tribunal in Germany or in the territory of her allies.
The German Government shall hand over to the Allied and Associated Powers, or to such one of them as shall so request, all persons accused of having committed an act in violation of the laws and customs of war, who are specified either by name or by the rank, office or employment which they held under the German authorities.
Persons guilty of criminal acts against the nationals of one of the Allied and Associated Powers will he broughtt before the military tribunals of that Power.
Persons guilty of criminal acts against the nationals of snore than one of the Allied and Associated Powers will be brought, before military tribunals composed of members of tie military tribunals of the Powers concerned.
In every case the accused will be entitled to name his own counsel.
The German Government undertakes to furnish all documents and information of every kind, the production of which may be considered necessary to ensure the full knowledge of the incriminating acts, the discovery of offenders and the just appreciation of responsibility
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....Although the 853 names on the extradition list of February 1920 included leading figures of the old regime, the much reduced list presented by the Allies to the Reichsgericht in early 1921 focused on cases which typified their perceptions of German war crimes. The events of 1914 maintained a central place. Of the total of 45 cases, France submitted 11, Belgium 15, and Britain seven. Italy, Poland, Romania and Yugoslavia had 12 cases between them.' British accusations concerned U-boat warfare and the alleged maltreatment of prisoners of war. The 15 Belgian cases covered three incidents, one each concerning the occupation and the maltreatment of prisoners, and one, the massacre at Andenne-Seilles with 262 civilian dead, which represented the invasion. The 11 French cases covered an incident of willful neglect in a German prisoner-of-war camp and three salient atrocities of 1914. These were the execution of captured French soldiers in Lorraine in August 1914 on the order of Major-General Stenger, the shooting of civilians at Jarny, and the destruction of Nomeny with the loss of 55 inhabitants."
Despite their limitations, the Leipzig proceedings presented the first opportunity to confront from both sides the events that lay behind some of the bitterest Allied accusations. The German state prosecutor, using Allied evidence and witnesses, would charge named individuals for particular acts which were deemed by the Allies to be war crimes. The accused would have the full backing of state-supplied evidence and German defence witnesses to justify their actions and reject the Allied legal definition of war crimes. Yet if a slim chance existed that wartime Allied atrocity allegations might be converted into a sustainable judicial process, the gulf separating the two sides was too wide and the legitimacy accorded the proceedings in Germany too tenuous for it to succeed.
Even bringing the cases to trial encountered deep German reservations. The German government came under pressure from German innocentist campaigners to oppose the entire process and publish a list of German counter-accusations of Allied war crimes. The government delayed initiating proceedings for as long as it could, despite growing Allied pressure. Matters came to a head in early May 1921, when the Allies threatened to occupy the Ruhr over German obstruction of reparations, disarmament, and war crimes trials. The centre-right Fehrenbach government resigned and its centre-leftt successor, under Centre Party leader Josef Wirth, began the trials speedily. The new policy was one of damage limitation, doing the minimum necessary to fulfil the peace terms and avoid sanctions (hence its refusal to publish the countercharges of Allied war crimes) while minimizing nationalist hostility.
This is not to say that the proceedings which opened on 23 May 1921 before the Criminal Senate of the Reichsgericht in Leipzig were a charade. The German judicial system enjoyed real independence from government, as centre-left politicians in Weimar learned. The court president, Dr Karl Schmidt, conducted the trials with punctilious fairness and courtesy towards both Allied witnesses and the top-level delegations from Britain, France, and Belgium which attended the prosecution of `their' cases." More obvious bias carne in the declared reluctance of the Reich Prosecutor, Dr Ludwig Ebermayer, who brought the Allied cases, to proceed against career officers and servicemen whom he considered to be the embodiment of patriotic duty. The Germans also enjoyed an important political discretion in deciding the legal admissibility of the cases and the order in which they would be brought. Finally, the atmosphere of the trials was unavoidably partisan. Apart from the Allied delegations and representatives of the world press, the courtroom was packed with a largely hostile German public. Opportunities were rife for demagogic speeches by the defense and expressions of hatred towards Allied witnesses and observers."
The four British cases (three of the seven having been abandoned owing to the absence of the accused) were the first to be heard. This primacy was almost certainly political. Ebermayer acted in a dilatory fashion in relation to the Belgian and French material (ignoring the cases relating to 19 14), while he was quite keen to proceed in the British cases, especially those to do with naval warfare." This probably stemmed from the German view that the British set the greatest store by the Leipzig proceedings, that they would be the easiest to satisfy, and that once satisfied, the impetus for the trials would abate. The British cases, unlike the massacres, incendiarism, and deportations of 1914, were also relatively simple to settle without major discredit to the army.
Light sentences were given to three junior officers in a wartime prison camp for brutality towards British prisoners. However, a t-.'-boat commander who had torpedoed a hospital ship, the Dover Castle, was found innocent on the grounds that he had merely obeyed German naval orders to sin k hospital ships in designated zones in reprisal for the supposed Allied use of such vessels to transport war materials. The court did not query the orders as such. As if to compensate the British, the Reichsgericht subsequently initiated a case on its own account concerning the sinking of another hospital ship, the Llandovery Castle, by a different I '-boat. Although the U-boat commander was safely in exile, the court found two subordinates guilty not for attacking the ship, though it was far outside the zones designated for this type of action, but for failing to act against their commander when he fired on the survivors in their lifeboats. None of the judgments in the British cases called the principles of German war conduct into question. They merely found individuals guilty of gratuitously offending against basic humanity.
Although German opinion was divided, with liberals welcoming the independence of the court and nationalists condemning the ten-year sentences given to the naval officers, British opinion was by and large satisfied. The English Solicitor-General, Sir Ernest Pollock, reported to the cabinet and to Parliament that the guilty verdicts offset the light sentences:For the first time in the history of the world, we have made a vanquished country try some of its own criminals and [.. .[ the courts of the vanquished country have themselves, in a certain number of cases, already found some of their own nationals guilty of atrocities and sentenced them to terms which, if we think them inadequate, at any rate carry a severe stigma in their own country.
A motion for a parliamentary debate on the trials was defeated and the government considered henceforth that the war crimes issue was closed, with any attempt to reopen it a danger to the normalization of relations with Germany.
By contrast, the Belgian arid French governments reversed their reluctant acceptance of the Leipzig compromise in the light of the court's judgments. The first Belgian case concerned the alleged torture by a German officer in 1917 of Belgian boys aged nine to 12 years in order to extract confessions of sabotage. The court discredited the witnesses' evidence on the grounds of youth and dismissed the case. The Belgian delegation departed in outrage, declaring the proceedings `a travesty of justice'. The remaining Belgian cases, including the Andenne massacre, thus fell by default."'
The French hearings, which lasted from 29 June to 9 July 1921, opened with the trial of General Stenger on the charge of ordering the 58th Infantry Brigade (Sixth Army) to kill all French captive soldiers, including the wounded, during the fighting in French Lorraine in August 1914. Stenger was alleged to have given his order on 21 August and to have renewed it in writing on 26 August. In one important respect, the case was untypical of events in 1914. Stenger's order, if such it was, indisputably contravened the Geneva Convention of 1906 protecting the wounded, and the 1907 Hague Convention on Land Warfare regarding prisoners of war. As we have seen, it is probable that some wounded and captured Allied soldiers were finished off by Germans under intense pressure from the Schlieffen Plan timetable. Later, on the western front, the summary dispatch of helpless enemy captives was a crime not infrequently committed by soldiers of all armies. However, there is no evidence of a formal German policy to shoot prisoners in the fashion suggested by the French on the basis of the Stenger and other cases.
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Nonetheless, Stenger was taken by French opinion to embody German military ruthlessness during the invasion, whereas in the eves of many Germans, he was a decorated war hero who had lost a leg in a French artillery attack and appeared in court at Leipzig on crutches. Not surprisingly, the trial turned into a rallying point for outraged German nationalists and right-wing officers' associations. It was envenomed by the testimony of Stenger's subordinate, Captain (now Major) Crusius, who turned state's evidence and admitted to shooting French prisoners on Stenger's instruction. Furthermore, a number of German military witnesses were deemed to be traitors to the Fatherland. Indeed, when one Alsatian soldier (from IR 112) testified to having heard Stenger give the order to shoot prisoners, the general interrupted, shouting: It is a swindle! The witness is a lying Alsatian!""
In fact, the evidence against Stenger was hard to refute. In its victorious battle at Saarburg on 20 August the 58th Infantry Brigade had suffered severe losses." At twilight an unexpected counter-attack by enemy infantry had to be repulsed. The brigade, which had been fighting since the outbreak of war, resumed the pursuit of the retreating enemy early in the morning of 21 August. Before setting off, Stenger had a conversation with officers of the 1st Battalion of IR 112, among them the commander, Major Muller, who was killed on 26 August, and Captain Crusius, commander of the 3rd company.
Crusius testified that this exchange consisted of an order by Stenger to shoot all the wounded Frenchmen on the battlefield, where they had lain during the night. Crusius relayed this to his company as a brigade order. Stenger denied having issued such an order, admitting only that, when he heard that French wounded soldiers fired on the Germans from behind, he told his staff, `such enemies should be shot dead on the spot.' This was not an order, he claimed, merely an expression of opinion. Since Crusius was on trial for shooting French prisoners and sought to exculpate himself by pleading superior orders, his evidence has to be treated with caution. Other officers supported Stenger's denial.
Many of the men in the ranks, however, especially in the 3rd Battalion of IR 112, distinctly recalled receiving a `brigade order' to kill captive and wounded French soldiers, or hearing Stenger express this opinion. Witness Kaupp confirmed that Crusius had relayed the order. Kaupp's men were, he said, at first `indignant' and he told them he understood that only those wounded soldiers should be shot who themselves fired. Witness Ernst said that the order `not to take prisoners' was questioned by his sergeant but the response was `Brigadebefehl' (brigade order). The sergeant banned his men from carrying it out., but while advancing across the parade ground, Ernst heard Major Muller give the order to shoot Frenchmen lying in a hollow. Even more importantly, one-year volunteer Schmerber heard Major Muller say to four officers and Crusius `Brigade order: all wounded soldiers and other individual [French] soldiers are not to be taken captive, but shot.' The officers were disquieted by this, but Muller told them: 'it was a necessary measure for Major-General Stenger had found that French troops fired treacherously at, the Germans. Also no manpower was available for the transport of the prisoners.' Egged on by Muller and Crusius with the words `Don't you know the brigade order yet?', soldiers then killed about 20 wounded Frenchmen.
Together with evidence from captured German war diaries, which the witnesses were unable to disown, there was sufficient evidence to show that sonic form of verbal order was issued by Stenger on 21 August." The French, moreover, could prove that a written order was issued on 26 August at the battle of Thiaville, notably from an inquiry conducted in 1915 among 16 prisoners of IR 112 and 142, as well as from the deposition already referred to by an Alsatian medical officer in IR 112. The recently published diary of the Alsatian recruit, Dominik Richert, confirms the second Stenger order. In fact. Richert intervened in one instance to prevent the killing of captured Frenchmen."
Nonetheless, the court declared there was no case against General Stenger. Instead, it found his subordinate, Crusius, guilty of manslaughter and sentenced him to two and a half years' imprisonment. Stenger emerged from the court carrying flowers from his admirers. He received so many letters `congratulating him on his order to give no quarter' that he placed an advertisement in the press to express his gratitude. ° After his own trial, he was active in the campaign to support the accused in further war crimes trials, sending out circulars to collect money'°' As late as April 1922 he anticipated a renewed call by the Entente for extradition, which he fully expected the German government would refuse. In this, he wrote, it needed the support: of the entire people:The question of the alleged war criminals is not a party question, for the 890 persons on the extradition list come from all classes of our people. It also offends the sense of justice of everyone that only Germany has to conduct such trials, while the notorious war criminals of the Entente, about whom we have abundant prosecution evidence, escape scot-free. Our people in arms in the years 1914-18 is owed a self-evident debt of gratitude, by ensuring that its glorious deeds are kept clear of the dirt of slander.
Stenger's acquittal outraged the French. On 8 July their delegation was recalled from Leipzig, never to return, leaving the cases of .Jarny and Nomeny unheard."" The Avocat General, Matter, who led the official team, noted that inadequate French preparation (especially in relation to foolproof witness statements) had combined with German bias and obstruction to defeat the case against Stenger. In his report to the government, he underlined the hostility displayed towards the Alsatian witnesses, who were constantly interrupted and questioned on their family origins and wartime conduct, and whose evidence counted for nothing against a Prussian general. Overall, Matter came to the opposite conclusion to his English counterpart, Sir Ernest Pollock. He told the government that the Germans had not fulfilled the undertaking made to the Allies in 1921) that when holding war crimes trials on German soil, they would `rise above [ their] own feelings [and I dominate [their] national prejudices', and he advised against further participation.''' The French reproached the British for accepting the Leipzig verdicts, and the Prime Minister, Briand, denounced the `parody' of the trials to parliament.'"'
The Leipzig proceedings failed both as a war crimes tribunal and as a means of resolving opposed national views of the events of 1914. if Leipzig was victors' justice, it was on the terms of the vanquished, satisfying no one except the British government, which had decided to move beyond the whole business. Briand, meanwhile, had begun to seek a more conciliatory approach towards Germany, and he recommended to an inter-Allied meeting in August 1921 that the issue of the trials should be referred to a body of `high legal authorities' so that `time would [... ] be gained and public opinion would have a chance to die down'. "" This struck a chord with the British government, which readily agreed, and with the Wirth government in Germany. But French public and press opinion did not die down. In response to the Leipzig trials, Briand was lobbied in the summer and autumn 1921 by outraged French veterans' and ex-prisoner-of-war associations demanding renewed action against German war criminals; in December he received a similar petition from the Ligue Souvenez-Vous.
He summoned a meeting of the legal experts of the Inter-Allied Commission on Leipzig on 6-7 January 1922.
The outcome of this meeting destroyed any idea that the war crimes issue would simply fade away. The Inter-Allied Commission condemned the Leipzig trials as `highly unsatisfactory' and recommended that the Allies should resume the demand for extradition."') This idea was bluntly rejected by the Wirth government, supported by general press hostility and nationalist demonstrations."' In -March 1922, President Ebert visited the centenary memorial to the 1813 Battle of Leipzig and publicly defended the work of the Supreme Court against `official foreign criticism'."' At the same time, a new French government took office under the wartime president of the Republic, Raymond Poincare, who was intent on pursuing a tougher policy towards Germany on the fulfilment of the peace treaty. Poincare's immediate goal was tightening sanctions in order to ensure the delivery of reparations. German refusal to comply with Articles 228-30 provided him with additional leverage on the former Allies for action against Germany. Like Briand, Poincare was also subject to strong public resentment at German behaviour. He, too, received a petition from the Ligue SouvenezVous. Moreover, as a Lorrainer who had personally and officially shared the outrage at `German atrocities' during the invasion, he felt strongly on the issue. For these reasons, he urged the British to act on the recommendations of the Inter-Allied Commission on the Leipzig Trials and renew the demand for extradition.""
The British rejected the proposal outright when the French tabled it at a conference of ambassadors on 26 July 1922. In a compromise solution which barely disguised the fact that co-operation between the former Allies on the war crimes issue had broken down, a note was issued to the German government stating that the Allied governments condemned the Leipzig trials and reserved the right to pursue the full implementation of Articles 228-30. An additional note reserved the right of prosecution in absentia."' In reality, the lack of political will to pursue extradition, especially on the part of the British, meant that the long German campaign to frustrate the prosecution of war criminals had succeeded.
Yet the issue did not quite end there. Following Leipzig, the French proceeded with trials of German war criminals by court-martial in absentia. The aborted hearing of the case of Nomeny, for example, was followed by the court-martial trial of the accused in Nancy, a decision announced by the Minister of Justice at Nomeny as he awarded the Croix de guerre to the town in September 1921_1 1 Poincare expanded the process in April 1922 to include all 2,000 Germans on the original French list. This now became the principal judicial means of dealing with wartime German atrocities, and by December 1924 more than 1,200 Germans had been found guilty. The centre-left government which came to office in June 1924, under Edouard Herriot, did not stop the trials, but Herriot ordered the _Ministries of Justice and War to exercise the `greatest discretion L...1 vis-à-vis the press', suggesting that the public mood had begun to change.' The Belgians likewise conducted a substantial number of prosecutions by courts-martial not only of cases on the extradition list but of other German soldiers.''"
The Reichsgericht, for its part, worked its way through all 855 accused whose names had been made public in February 1920.'' Its purpose was to exonerate the officers and men who were being condemned in their absence by the French and Belgians. Neither the French nor the Belgian authorities informed the German government of their courts-martial judgments, so the German embassies in Paris and Brussels relied on the daily newspapers in order to report the names of those found guilty to the Foreign and Defence Ministries. The Reich prosecutor then instituted proceedings against them, and if, as was usually the case, these ended with a non-prosecution or an acquittal, the decision was publicized in the German, and if possible, international press. "Those condemned by a foreign court who wished to make a statement in the newspapers were given official help to do so.'' The issue remained one of military honour, with all that this implied for the political rehabilitation of the German army.
The conflicting judgments of the Allied courts-martial and the Reichsgericht sprang from continuing differences in interpretation of the laws of war combined with the German belief in a People's War conducted by francs-tireurs. Three examples illustrate the distinction. In October 1924, a court-martial of the French 20th Army Corps in Nancy tried a number of senior Bavarian officers in absentia for the mass execution at Gerbeviller, imposing death sentences on there. 'The official German story, published in the Reichsarchiv history in 1925, was that the 51st Infantry Division had been involved in bitter fighting in which it faced a well prepared franc-tireur attack. The Reichsgericht found that. the German soldiers, encountering `treacherous' franc-tireur resistance, behaved lawfully.'"'
The swathe of destruction cut by the Third Army through Namur province and north-eastern France was likewise the subject of opposed judgments. The Belgian and French governments accused seven generals of responsibility for the destruction of Dinant, Rethel, and elsewhere. Furthermore, on 9 May 1925 a Belgian court-martial at Dinant sentenced a number of German officers in their absence for the killings in August 1914."" The Leipzig court dismissed all these charges in November-December 1925. One of the seven generals was Johannes Meister, who (as colonel) commanded Grenadier Regiment 101 in August 1914, and who had been charged by the Belgians on 19 June 1922 with the `systematically inhumane conduct of' his troops from 19 to 27 August', and in particular with ordering the execution of a number of civilians at Les Rivages (Dinant) on 25 August. The Reichsgericht noted that this event was the subject of one German internal investigation in 1915 (the inquiry for the White Book) and another in 1920. The court repeated that the troops were fired on by civilians, even women and children. Although some witnesses confirmed that civilians, including women and children, were killed as hostages, the court found `no evidence to show the execution was unlawful. Nor could it, be proved that the defendant issued an order to shoot the civilians.' 121 The court likewise found in relation to the six other generals that no acts `punishable in German law' had been committed."'
In January 1925 the court-martial of Liege and Luxembourg provinces condemned Colonel von Hedernann and General Thessmar to death in absentia for the collective execution at Arlon, on 26 August 1914. Even Bert hold Widmann, the Foreign Ministry's consultant lawyer, admitted that in this instance the Reichsgericht investigation had not been able to find any justification of these executions, or evidence of franc-tireur acts in Rossignol. Yet the court decreed that it was `not improbable' that the executed Belgians might have been `partly' guilty of treacherous or illegal acts against German troops, and it placed the accused `outside prosecution'."'
The trial by French and Belgian courts-martial of alleged war criminals and the parallel hearings of the Reichsgericht show just how irreconcilable the two sides remained over the events of 1914. The issue poisoned relations between the former belligerent powers into the mid-1920s, not least because Germans condemned by the French and Belgian tribunals were liable to arrest if they set foot in those countries, and thus found their ability to travel humiliatingly curtailed. Only in the second half of the 1920s were these sanctions dropped by the French and Belgian authorities and the courts-martial abandoned." In Germany, the issue continued to rankle. Out of 907 cases heard on the basis of the Allied extradition list, nine ended with judgments - five acquittals and four convictions of subaltern soldiers. For most of the remainder, the Reichsgericht had decided by 1925 - on the basis of preliminary proceedings at which the accused did not have to appear - that there was no case to answer." The court even reversed the guilty verdicts in the Llandovery Castle case.'" The activities of the Reichsgericht relating to war crimes continued until the Nazis, on coming to power, ended them.
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