When is a War Criminal not a War Criminal-Scenario

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Andy H
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When is a War Criminal not a War Criminal-Scenario

Post by Andy H » 25 Sep 2002 18:13

With a lot of the movers and shakers of the Holocaust already dead through punishment or natural causes, a lot of the so called pawns are still walking around, however I'm interested on any constructive comments on the following scenario which falls under the "Only Obeying orders defence"

Private Hans on his way back from leave is suddenly thrown into an Alarm unit that has been organised to help round up Partisans and Jews within Belorussia. Hans is a trained infantryman with a wife a three young children at home who believes in Germany but not a member of the Nazi party. The operation is succesful and several hundred suspect partisans and Jews are rounded up. Hans is commended for his actions and it is duly noted in his records. Hans is then given another task along with others to shoot in cold blood some 100+ Jews( Men, Women and Children), Hans protests to the Commanding officer but is told in no uncertain terms that he will join them (The Jews) and his family will suffer dire consequences if he still refuses to obey the order, reluctantly he agrees.

The massacre is witnessed but not Hans opposistion to it. Decades later this massacre comes to light and through careful research of German records, Hans name appears on the list. The witness is still alive and is able to identify Hans. Hans ends up in court, where he pleads the classic "I was only obeying Orders defence"

Your on the jury how do you vote, War criminal and death or not and freedom.

Maybe I'm not as strong as some people but I think I would have done exactly the same as Hans.

:| Andy from the Shire

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Scott Smith
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Post by Scott Smith » 25 Sep 2002 18:38

Legend has it that, as per Himmler's explicit instructions, that German troops never got orders to shoot Jews that they had to obey. It was strictly volunteers, and they got lots of loot in the form of gold teeth and all the booze that they could drink--they needed it. And so many killer-soldiers still wet their pants that the SS had to build gaschambers to make it less personal.

That's basically the thesis, reduced to its essentials, for what it's worth.
:)
Last edited by Scott Smith on 05 Oct 2002 19:07, edited 1 time in total.

Dan
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Post by Dan » 25 Sep 2002 19:59

Yes, Roberto has shown what looks to be convincing evidence that the Germans never forced soldiers to kill civilians against their will.

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Post by Caldric » 25 Sep 2002 20:06

Appears that most of them did it just because they wanted to then. Wonder what they paid the Latvian Shooters, I seen an interview of one of the ones that spent 20 years hard labor in USSR after the war, he said they just drunk a lot of vodka before and after the shooting.

But makes me wonder how they asked the Germans who chose to be a shooter, there is ways of asking without demanding but making it sound like a duty, or even an order.

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witness
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Post by witness » 25 Sep 2002 20:33

Dan wrote:Yes, Roberto has shown what looks to be convincing evidence that the Germans never forced soldiers to kill civilians against their will.


Does it mean that the soldier who refused such an order would not face
any consequences ? To be demoted for example or transferred to the other unit .

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Post by David Thompson » 25 Sep 2002 20:40

Andy -- You bring up an interesting hypothetical situation, to which the defense of duress may be raised in a prosecution. However, you described a situation in which "Hans protests to the Commanding officer but is told in no uncertain terms that he will join them (The Jews) and his family will suffer dire consequences if he still refuses to obey the order, reluctantly he agrees."

It is my understanding that this situation was extremely rare. Apparently no defendant in these shooting cases was able to establish a single execution by German authorities for a refusal to follow orders to kill civilians. The trial testimony of defendants in these cases showed that it was far more usual in the German shooting units to ask for volunteers, or to permit protesters to do something else, like stand guard duty or attend to other matters. (see, for example, Browning's study of the 101st Reserve Police Battalion, "Ordinary Men," pp. 56-7, 61-3, 65-8, 71-7, 200-204.)

If you have access to any testimony in which German soldiers were executed for a refusal to kill civilians, or anything to indicate that the hypothetical "Hans protests to the Commanding officer but is told in no uncertain terms that he will join them (The Jews) and his family will suffer dire consequences if he still refuses to obey the order, reluctantly he agrees." actually happened with any frequency, I would be very interested in seeing it. (Browning gives the only example I've ever read in "Ordinary Men," p. 62, involving SS-Hauptsturmfuehrer Julius Wohlauf).
Last edited by David Thompson on 25 Sep 2002 20:45, edited 1 time in total.

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Scott Smith
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Post by Scott Smith » 25 Sep 2002 20:41

witness wrote:
Dan wrote:Yes, Roberto has shown what looks to be convincing evidence that the Germans never forced soldiers to kill civilians against their will.

Does it mean that the soldier who refused such an order would not face
any consequences ? To be demoted for example or transferred to the other unit .

Daniel Jonah Goldhagen also says that German troops were never given orders to do this, IIRC. They just asked for volunteers for the killing squads, which wasn't so hard, presumably, given that he regards anti-Semitism as historically endemic to German society in general and not just the Nazis and the SS in particular.
:)

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Post by David Thompson » 25 Sep 2002 21:07

There is also an interesting commentary on your hypothetical, rendered by Judge Michael Musmanno in the Einsatzgruppen trials, at:

http://www.pgonline.com/electriczen/trials/duress.html

This seems to take the ability of German soldiers and police to refuse to shoot civilians out of the "legend" category. And "Witness's" post raises an interesting question: what is the proper assessment of a person who participates in the murder of civilians because, to do otherwise, might cause a transfer to another unit or spoil a promising career?

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HaEn
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orders

Post by HaEn » 25 Sep 2002 22:19

How naive can we get ? Although there have been recorded cases of soldiers who refused orders and got away with it, in general it was : "BEFEHL IST BEFEHL". It was explained by our C.O. this way: "FIRST you carry out the order, THEN you may complain about it". I have stated before that only by the grace of God was I never put into a position like that, because I don't know if I would have had the guts to disobey. I wish to think I would have, but . . . . ? HN.

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Re: orders

Post by Caldric » 25 Sep 2002 22:24

HaEn wrote:How naive can we get ? Although there have been recorded cases of soldiers who refused orders and got away with it, in general it was : "BEFEHL IST BEFEHL". It was explained by our C.O. this way: "FIRST you carry out the order, THEN you may complain about it". I have stated before that only by the grace of God was I never put into a position like that, because I don't know if I would have had the guts to disobey. I wish to think I would have, but . . . . ? HN.



That is what I was trying to say Haen, I mean asking a soldier "will they" is the same as saying "you will". What soldier is going to say no?

As I said it is my opinion that there are ways of asking without demanding but making it sound like a duty, or even an order.

Such as the simple,

"I need a squad to go with these men to carry out some details, first squad will go."

That is pretty much the end of it, when they were hanging soldiers for stealing a piece of bread I have serious doubts one would argue with any order or even "request" to do something.

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Post by Richard Murphy » 25 Sep 2002 22:37

Being as we seem to have agreement on the "execution" question, surely the next step down (Transfers, of which there is evidence, or demotion (And, presumably, transfer).) would be exactly what "Hans" would want!

Goldhagen's books pushes the point too far, but much of what he says in relation to the field activities, rather than to motivation behind its anti-Semitic purpose, is accurate, and recorded in other sources.

Returning to "Hans" for a moment, I would approach the Allied Commision at my first opportunity after the end of the war and offer to testify. That way, I don't have it hanging over my head for the rest of my life.

Regards from the Park,

Rich

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witness
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Re: orders

Post by witness » 25 Sep 2002 22:48

HaEn wrote:How naive can we get ? Although there have been recorded cases of soldiers who refused orders and got away with it, in general it was : "BEFEHL IST BEFEHL". .

So what would be the consequences of a refusal to obey such an order ?
Were there any documented examples ?
I suspect that indeed the consequences must have been severe.
Even Volksstrum had to take part in summary executions by the end of the War according to A. Beevor

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Post by David Thompson » 26 Sep 2002 01:49

How naive can we get? Try this on:

- 91 -

One may accuse the Nazi military hierarchy of cruelty, even sadism, if one will. But it may not be lightly charged with inefficiency. If any of these kommando leaders had stated that they were constitutionally unable to perform this cold-blooded slaughter of human beings, it is not unreasonable to assume that they would have been assigned to other duties, not out of sympathy or for humanitarian reasons, but for efficiency's sake alone. In fact Ohlendorf himself declared on this very subject:

"In two and a half years I had sufficient occasion to see how many of my Gruppe did not agree to this order in their inner opinion. Thus, I forbade the participation in these executions on the part of some of these men, and I sent some back to Germany."
Ohlendorf himself could have got out of his execution assignment by refusing cooperation with the Army. He testified that the Chief of Staff in the field said to him that if he, Ohlendorf, did not cooperate, he would ask for his dismissal in Berlin.

The witness Hartl testified that Thomas, Chief of Einsatzgruppe B, declared that all those who could not reconcile their conscience to the Fuehrer-Order, that is, people who were too soft, as he said, would be sent back to Germany or assigned to other tasks, and that, in fact, he did send a number of people including commanders back to the Reich.

This might not have been true in all Einsatzgruppen, as the witness pointed out, but it is not enough for a defendant to say, as did Braune and Klingelhoefer, that it was pointless to ask to be released and, therefore did not even try. Exculpation is not so easy as that. No one can shrug off so appalling a moral responsibility with the statement that there was no point in trying. The failure to attempt disengagement from so catastrophic an assignment might well spell the conclusion that the defendant involved had no deep-seated desire to be released.

He may have thought the

- 92 -

work unpleasant but did it nonetheless. Even a professional murderer may not relish killing his victim, but he does it with no misgivings. A defendant's willingness may have been predicated on the premise that he personally opposed Jews or that he wished to stand well in the eyes of his comrades, or by doing the job well he might earn rapid promotion. The motive is unimportant if he killed willingly.

The witness Hartl also related how one day as he and Blobel were driving through the country, Blobel pointed out to him a long grave and said: "Here my Jews are buried." One can only conclude that Blobel was proud of what he had done. "Here my Jews are buried." Just as one might speak of the game he had bagged in a jungle.

Despite the sustained assertion on the part of the defendants that they were straight-jacketed in their obedience to Superior Orders, the majority of them have, with testimony and affidavits, demonstrated how on numerous occasions they opposed decrees and orders handed down by their superiors. In an effort to show that they were not really Nazis at heart, defendant after defendant related his dramatic clashed with his superiors.

If one concentrated only on this latter phase of the defense on would conclude that these defendants were all ardent rebels against National Socialism and valiantly fought against the inhuman proposals put to them. Thus, one affiant says of the defendant Willy Seibert that he "was strongly opposed to measures taken by the Party and the government."

Of Steimle an affiant said: "Many a time he opposed the Party agencies and so-called superior leaders." Another affidavit not only states that Steimle opposed violence but that in his zeal for justice he shrewdly joined the SD in order to be able "to criticize the shortcomings of the party." Again it was stated that "repeatedly his sense of justice led him to oppose excesses, corruptions and symptoms of depravity by party-officers."

Of Braune an affiant states, "over and over again Dr. Braune

- 93 -

criticized severely our policy in the occupied territories (especially in the East, Ukraine and Baltic states)."

During the time he served in Norway Braune was a flaming sword of opposition to tyranny and injustice in his own camp. He bitterly opposed the Reich Kommissar Terboven, cancelled his orders, condemned large-scale operations, released hostages and freed the Norwegian State Minister Gerhardsen. One affidavit said that in these actions "Braune nearly always went beyond his authority." And yet in spite of this open rebellion Braune was not shot or even disciplined. Why is it that in Norway he acted so differently from the manner in which he performed in Russia? Was he more the humanitarian in Norway? The answer is not difficult to find. One of the affiants very specifically states:

"Right from the beginning of our conferences, Braune opposed the large-scale operations which Terboven and Fehlis continually carried out. He did not expect the slightest success from such measures, and saw in them only the danger of antagonizing the Norwegian population more and more against German policy and the danger of increasing their spirit of resistance." Thus, the defendants could and did oppose orders when they did not agree with them. But when they ideologically espoused an order such as the Fuehrer-Order they had no interest in opposing it.

- 94 -

Extract of Opinion by Musmanno, Michael A., U.S.N.R, Presiding Judge, Military Tribunal II, Case 9 (Einsatzgruppe Trial): Opinion and Judgment of the Tribunal. Nuremberg: Palace of Justice. 8 April 1948. pp. 91 - 94 (original mimeographed copy) at http://www.pgonline.com/electriczen/trials/duress.html

If you have a look at the references I gave in my post to Browning's "Ordinary Men," you will see that on just one day -- 12 Jul 1942 -- well over 17 soldiers from the 101st Police Reserve Battalion refused to execute illegal orders to shoot the Jews of Jozefow, Poland, and were assigned to other duties.

"The Good Old Days: The Holocaust as Seen by Its Perpetrators and Bystanders" (ed. Ernst Klee, Willi Dressen, & Volker Riess, 1988), pp. 70-86, has statements from another 14 persons, ranging in rank from minor police officials to an SS-Oberfuehrer (Dr. Franz Six). The statements were all given in West Germany between 1958 and 1963. None of these individuals served with the 101st Police Reserve Battalion. All recount their refusals to participate in illegal executions of civilians or their requests for transfer which had no serious repercussions. SS-Oberfuehrer Dr. Six says that he never even heard of anyone being executed for refusing to obey orders to shoot Jewish civilians.

How naive can we get indeed.

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Scott Smith
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Post by Scott Smith » 26 Sep 2002 05:57

David Thompson wrote:well over 17 soldiers from the 101st Police Reserve Battalion refused to execute illegal orders to shoot the Jews of Jozefow, Poland, and were assigned to other duties.

It was certainly morally wrong but it was not an execution of "illegal orders." As HaEn noted, Orders Are Orders, Sir.
:)

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Post by Roberto » 26 Sep 2002 09:56

Scott Smith wrote:
David Thompson wrote:well over 17 soldiers from the 101st Police Reserve Battalion refused to execute illegal orders to shoot the Jews of Jozefow, Poland, and were assigned to other duties.

It was certainly morally wrong but it was not an execution of "illegal orders." As HaEn noted, Orders Are Orders, Sir.
:)


Exactly.

If a sovereign nation pronounces murder to be legal, it is legal.

If a sovereign nation rules that a certain group of people does not deserve to live and will thus be bumped off wherever found, killing as many members of that group as possible is the lawful thing to do.

Interesting point of view.

Hear the screws dropping to the floor?

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