Source: Law-Reports of Trials of War Criminals, The United Nations War Crimes Commission, Volume V, London, HMSO, 1948
[Some sections have been highlighted provisionally until hyperlinks can be added to appropriate files. Page numbers precede text]
No. 29. .
OF KARL BUCK AND TEN OTHERS
MILITARY COURT, WUPPERTAL, GERMANY
OUTLINE OF THE PROCEEDINGS
accused, Hauptsturmführer Karl Buck, Untersturmführer Robert Wunsch,
Oberleutnant Karl Nussberger, Wachtmeister Erwin Ostertag,
Oberwachtmeister Joseph Muth, Zugwachtmeister Bernhard Josef Ulrich,
Oberwachtmeister Heinrich Neuschwanger, Wachtmeister Dinkel,
Wachtmeister Helmut Korb, Wachtmeister Xavier Vetter and
Sturmscharführer Zimmermann, were charged with committing a war
crime, in that they, at Rotenfels Security Camp, Gaggenau, Germany, on
25th November, 1944, in violation of the laws and usages of war, were
concerned in the killing of six British prisoners of war, all of No. 2
Special Air Service Regiment, four American prisoners of war, and four
French Nationals ; the victims were all named in the charge. The
accused pleaded not guilty.
was shown that the deceased were prisoners at Rotenfels Camp. On 25th
November, 1944, they were taken in a lorry to a wood, where they were
all shot to death.
was in charge of the camp of Schermeck in Alsace and, by virtue of
that office, was also Lager Kommandant at the Camp at Gaggenau.
Wunsch was the man through whom he carried out his
administrative duties at the latter place : Buck, who claimed in Court
to have received orders from Dr. Isselhorst, who was in charge of the
Security Police and S D. in the South West, that certain prisoners
including the British and American prisoners of war should be shot,
confessed that, having first had the victims transferred from
Schermeck to Gaggenau and having tried to evade the command, he
ordered Wunsch to have the prisoners of war and certain others shot,
and to destroy all the evidence.
claimed that he was in charge of Gaggenau only from the point of view
of its general administration, and that Nussberger was in charge of
the police. There was other evidence independent of that of Wunsch
indicating that this accused was not responsible for the police who
were in charge of the security of the camp. Wunsch pleaded that he
acted as a mere messenger in passing on to Nussberger Bucks orders
for the shooting of specified prisoners ; had Nussberger been present
when Buck called at the camp, the orders would have been given to him
was evidence that Nussberger was present when the prisoners were being
loaded into the lorry which took them to the wood, and that he told the
driver to get away as quickly as possible. This accused claimed that
he was present when Buck delivered his orders to Wunsch, that his own
was merely to tell Neuschwanger, a guard, to report to Wunsch for
orders and that it was actually Wunsch who gave the necessary
instructions to Neuschwanger.
driver gave evidence that Neuschwanger was in charge of the lorry and,
together with Ostertag and Ulrich, took the prisoners into the wood to
be shot. Neuschwanger claimed that he had been detailed by Ostertag
but confessed to having taken part in the shooting.
a guard, also claimed to have been detailed by Ostertag and also
confessed to a part in the shooting.
made a similar confession. but claimed that. although his own rank in
the Schutzpolizei was
actually higher than that of Neuschwanger, the latter had been put in
charge of the shooting by Nussberger because he knew better the place
Dinkel, Korb and Vetter were shown to have guarded such victims as remained in the lorry during the period while the prisoners were taken into the wood in small groups to be shot. Korb and Vetter claimed to have demonstrated at the time their unwillingness to take part in any executions, and Dinkel to have had no knowledge of the purpose of the mission until the shooting began. Neuschwanger and Vetter, however, stated that Dinkel took some part in accompanying prisoners into the wood.
was evidence that Zimmermann, a member of the S.S. paraded the
prisoners before they left on the lorry, knowing that the latter were
to be shot.
Muths part consisted only in guarding several Russian prisoners who had been taken with the others in case they were needed to dig graves. He did not go to the scene of the shooting until after its completion.
by Vetter, Korb and Ulrich indicated that some of the victims were
still in uniform when shot. It was clear from the words of Wunsch and
Neuschwanger that these two accused also knew that the persons shot
included prisoners of war. Ostertag claimed that all the victims were
of the Prosecution witnesses, an intelligence officer of the No. 2
Special Air Service Regiment, to which the British victims belonged,
stated in the course of cross-examination that it was not among the
tasks of the Special Air Service to organize and support the Maquis,
but that members of the Regiment did naturally have connection with
members of the Maquis, because at this particular time the
operation which was mounted in the Vosges area was mounted at a time
at which the Maquis had risen against the German invaders.
The Defence called as a witness Dr. Isselhorst, Commander of the Security Police and S.D. in the South West in November, 1944. He stated that he had first had to deal with the so-called Leader Order of 18th October, 1942, when, in August, 1944, he had had his first reports of the British Special.
Airborne Service during an operation against the Maquis. According to the witnesss interpretation the Order provided that all baled-out or parachuted personnel of the Allied Forces who came down behind the German lines were to be killed without mercy. He had enquired whether the order was still valid and had been told by his superiors in Berlin that it was. He had instituted a system of investigation and had applied the order not to persons engaged in war-like operations such as the interruption of railways but only to persons who were shown to have co-operated with the Maquis.
enquiries had been made by one, Kommandoführer
Ernst, he had decided that the order must be applied to the victims of
the killings charged in the present trial. Ernst had said that the
group of prisoners had had sabotage equipment and instructions on
demolition, some had been spies, and the activities of the group had
been carried out in collaboration with the Maquis or the French civil
population. The witness admitted, however, that there had been no
trial of the victims by any court.
the accused except Muth were found guilty. Subject to confirmation by
superior military authority, Buck, Nussberger, Ostertag, Ulrich and
Neuschwanger were sentenced to death by shooting, and Zimmermann,
Dinkel, Wunsch, Korb and Vetter to imprisonment for ten, eight, four,
three and two years respectively.
sentences were confirmed by superior military authority.
NOTES ON THE CASE
THE COMPOSITION OF THE COURT .
Court was a British Military Court convened under the Royal Warrant of
14th June, 1945, Army Order 81/1945, as amended. (Footnote: For the
British law governing the trial of war criminals, see
Vol. I of this series, pp. 105-110.). It consisted of a
President and five members including Capitaine P. Bellet of the French
Air Force. The appointment of a French officer as a member of the
Court was no doubt made in view of the fact that Frenchmen figured
among the victims of the alleged crimes, and constituted an
application of Regulation 5 of the Royal Warrant, which provides :
OF THE VICTIMS
Judge Advocate pointed out that the British and United States victims,
if shown to be prisoners of war, were protected by the Geneva
Prisoners of War Convention of 1929, in Article 2. (Footnote: See
The French nationals, though not prisoners of war, were also protected by the laws and usages of war, and, said the Judge Advocate : the position under international law is that it is contrary to the rules of international law to murder a prisoner, and, if this court took the view that the shooting of these four French nationals was a murder of a prisoner held by the Germans and under the control of these accused, the court would be entitled to convict these accused of the violation of the rules of international law.
discussions as arose during the trial regarding the legal position of
the victims centred on the status of the six members of the Special
Air Service Regiment. The Defence emphasised the evidence which tended
to show that members of this Regiment had had some connection with the
all accused but one were found guilty on the charge, no special
finding being arrived at, it is impossible to ascertain in detail what
view the court took of the killing of the six British victims in
particular. The Judge Advocate said that the Court might take the view
that all that the evidence regarding the relations between the Special
Air Service and the Maquis showed was that any two movements which
took place in war at the same time must have an effect upon one
another. Even if it had been proved that part of the Regiment were
assisting the Maquis, it remained to be shown that the British and
American prisoners were among those who took part in rendering such
3. THE DEFENCE OF SUPERIOR ORDERS (Footnote: Regarding the plea of superior orders, see p. 13.)
pleaded that all of the accused acted under superior orders.
Counsel drew the Courts attention to the so-called Leader
Order of the 18th October, 1942.(Footnote: Regarding
this, the Führerbefehl of 18th Oktober, 1942, see also the Dostler
Case, in Vol. I of these Reports, pp.
and 33-34. It is
interesting to note, from the point of view
of historical research, that there are certain differences between the
account of the contents of the Führerbefehl
put forward in the Dostler Case and that put forward in the present
trial by Dr. Isselhorst, for instance as regards the Allied personnel
intended to be effected
This, he claimed, bound all the German armed forces, including the
S.S., S.D. and police, not to treat as prisoners of war, but instead
to shoot, members of so-called Commando detachments who were
parachuted from the air behind the German lines to do acts of sabotage
and interference. Every leader of a Kommando and officer had been
made responsible for seeing that this order was carried out and was to
be punished if he failed.
Counsel claimed that there was evidence that the victims of the shooting had established such contact with Terrorists and the Maquis as would bring them within the scope of these orders, and that a security police case preceded the executions. The accused would themselves have been punished by the S.S. and S.D. Courts had they not carried out their orders regarding the prisoners. Counsel for various individual accused claimed that the punishment meted out would undoubtedly have been death.
Judge Advocate stated that in principle superior orders provided no
defence to a criminal charge, and made reference to that passage from
Oppenheim-Lauterpachts International Law, 6th Edition
revised, pp. 452-453, on which reliance has been placed so frequently
in war crime trials :
Judge Advocate expressed the view that an accused would be guilty if
he committed a war crime in pursuance of an order, first if the order
was obviously unlawful, secondly if the accused knew that
the order was unlawful, or thirdly if he ought to have known it
to be unlawful had he considered the circumstances
in which it was given. (Footnote: See
THE DEFENCE OF MISTAKE
acting for the accused in general pointed out that in Germany there
had been not only courts-martial but also so-called S.S. and
police courts for German persons and members of the S.S. He claimed
that the interrogations of the victims by Kommandoführer Ernst, on
whose reports Dr. Isselhorst acted, constituted a trial by the
Security Police. The accused he claimed, had had no other information
on the matter than that the prisoners had been tried and condemened,
and had acted on that assumption.
They had .neither the sense for technicalities nor the
mental abilities to look deeper into this case. The Prosecutor, on
the other hand, submitted that the obliteration of all traces of the
crime and the steps taken by the accused to suppress all knowledge of
the crime belied any contention that they thought that they were
performing a legal execution. Lawful executions did not take place in
woods, nor were those shot buried in bomb craters with their
valuables, clothing and identity markings removed.
Judge Advocate pointed out that under the Hague Convention even spies
were entitled to a trial. (Footnote: Article 30 of the Hague
Convention No. IV of 1907 : A spy taken in the act shall not be
punished without previous trial.) There seemed to him to be no
evidence that the victims were ever tried before a Court. Dr.
Isselhorst had said that they were sentenced by decision of Ernst and
not through a court. If his evidence was believed, they were
condemned as a result of an administrative decision and not after a
that co-operation between certain of the victims and the Maquis was
not contrary to the laws and usages of war and assuming that the
original Führerbefehl was contrary to international law, the question
whether or not the deceased had ever been subjected to trial to find
whether they came within the scope of the latter would hardly seem
relevant to the question of the legality of the executions. On the
other hand, could it have been shown that a bona fide
impression had existed in the minds of the accused that the execution
was the consequence of a trial in which the victims had been legally
condemned to death, the plea of mistake of fact, which the Defence
raised, might well have been effective. In the circumstances of the
case, however, the Court did not see fit to give effect to it.
OF THE PROVISIONS OF INTERNATIONAL LAW AND ITS POSSIBLE EFFECTS
is a rule of English law that ignorance of the law is no excuse :
neminem excusat. There are some indications that this principle when applied
to the provisions of international law is not regarded universally as
being in all cases strictly enforceable. Thus Oppenheim-Lauterpacht, International
Law, 6th Edition revised, pp.
452-453, states that a Court confronted
with the plea of superior orders adduced in justification of a war
crime is bound to take into consideration the fact . . . that [a
member of the armed forces] cannot, in conditions of war discipline,
be expected to weigh scrupulously the legal merits of the order
received. In the present trial, the Judge Advocate, in his summing
up, said that the Court must ask itself : What did each of these
accused know about the rights of a prisoner of war ? That is a matter
of fact upon which the Court has to make up its mind. The Court may
well think that these men are not lawyers : they may not have heard
either of the Hague Convention or the Geneva Convention ; they may not
have seen any book of military law upon the subject ; but the Court
has to consider whether men who are serving either as soldiers or in
proximity to soldiers know as a matter of the general facts of
military life whether a prisoner of war has certain rights and whether
one of those rights is not, when captured, to security for his person.
It is a question of fact for you.
(Footnote: Italics inserted.)