CASE No. 30.
TRIAL OF
KARL ADAM GOLKEL AND THIRTEEN OTHERS
BRITISH
MILITARY COURT, WUPPERTAL, GERMANY
15
TH-21ST
MAY, 1946
Outline of Proceedings
Notes on the Case
The
Relative Value as Evidence of Pre-Trial Statements
Questions of Substantive Law
The
Defence of Superior Orders
The Remaining Defence Arguments
The Scope of the Words "Concerned in the Killing"
A.
OUTLINE OF THE PROCEEDINGS
The
accused, Karl Adam Golkel, Hans Hubner, August Geiger, Karl Bott,
Heinrich Klein, Hans Limberg, Josef Pilz, Emil Pahl, Walter Jantzen,
Walter Schmidt, Heinrich Thilker, Georg Zahringer, Ludwig Koch and
Horst Gaede, were charged with committing a war crime in that they “
at La Grande Fosse, France, on 15th October, 1944, in
violation of the laws and usages of war, were concerned in the killing
of ” eight named members of No. 2 Special Air Service Regiment, a
British unit, when prisoners of war.
They pleaded not guilty.
It
was shown that the victims, were captured British parachutists who,
after being interrogated and kept imprisoned for several days, at the
headquarters of the Kommando Ernst at Saales, were taken to a wood and
shot. All of the accused
were under the command of Sturmbannführer Ernst, on whose orders the
executions were carried out. None of the accused were proved to have
taken part in the actual shooting, but one of the Prosecution’s
witnesses, the former secretary of Ernst’s Kommando, testified that
Geiger, Koch, Gaede and Hubner took part in the “ less important
interrogations ” of prisoners at Saales.
Golkel
was a captain and the only accused who had at the time of the offence
held a commissioned rank. Despite this fact, he claimed that a certain
Oppelt had been put in charge of the executions by Ernst and that he
himself had to be present only as a formality as he was an S.S.
officer. He admitted
having previously sought and found out a suitable site for a grave for
the victims. On the day of the shooting he was driven to the scene by
Klein and claimed only to have arrived near the completion of the
offence ; on the exact time of his arrival, however, the other
evidence was conflicting, and Zahringer went so far as to state that
Golkel ordered that the prisoners should be made to undress and that
he indicated where they were to be shot. After the execution Golkel
reported its completion to Ernst, but he claimed in Court that he did
so only to show Ernst that he had been present as ordered.
Koch,
a corporal, admitted that he was one of the guards on the lorry which
conveyed the victims to the wood and that he and Hubner led one of
them to the prepared grave. He claimed, however, that, on being
ordered by Oppelt to shoot, both he and Hubner refused to do so.
Hubner,
another corporal, was also a guard on the lorry. He said that Oppelt
had ordered himself and Koch to shoot a prisoner and that both
refused, his own objection being that he had not been ordered to be
present as one of the executioners.
p.46
Zahringer,
a corporal, drove the lorry ; according to Golkel, he also accompanied
the latter when he went to choose the site for the shooting.
Zahringer’s account of his part on the day of the execution
was that he stayed by his lorry until the last prisoner left it, and
that he followed this one into the wood and saw him shot.
Geiger,
a corporal, admitted that he was present at the interrogation of one
of the victims, and also that he helped in widening the ditch intended
to receive the bodies of the prisoners. His claim to have spent the
whole of the time of the shooting in preventing all traffic and
persons from approaching the scene was corroborated by Hubner and
Koch.
Klein,
a corporal, said that he was ordered by Ernst to drive Golkel to the
wood and that he did so, stopping on the way but later catching up
with the lorry again. At the scene of the shooting his duty was merely
to act as a guard and assist in filling in the grave. Koch asserted
that Klein was present for the purpose of shooting prisoners but,
under cross-examination, he admitted that he did not actually see this
fellow-accused kill any prisoners.
Jantzen
was a staff-sergeant and, according to the Kommando secretary
mentioned above, he conducted some of the “ more important ”
interrogations of prisoners ; the accused admitted that he took a
minor part in the questioning of the eight English parachutists who
were later shot. Golkel said that Jantzen was Ernst’s right-hand man
and was much influenced in his decisions by his advice. Hubner’s
evidence was that Jantzen was in the unit office when Ernst gave the
order for the shooting, and that he thought that Jantzen was also
present in the wood. Klein in a pre-trial statement, said that Jantzen
got into the back of Golkel’s car and was among those around the
lorry at the wood, but in Court he said : “ It was also a mistake
when I quoted Jantzen as being present in the wood.”
Gaede
was a driver. In his statement made before trial he said that he was
told by Golkel to get a car ready in order that the latter might find
a suitable spot for the execution. He did take Golkel on this mission
and he claimed that he expressed his concern to Golkel about the
proposed shootings. In
the witness box he testified that he drove Oppelt and one Dietrich to
the scene of the shooting on the day thereof and then obeyed an order
by Oppelt to park the car and stay on the road. Geiger, however, said
that Gaede helped to widen and deepen the grave, and Zahringer and
Koch said that the same accused conducted one of the prisoners to the
place of shooting.
The
only evidence against Schmidt, who was Ernst’s batman, was that of
Klein, who said : “ I am not sure if Schmidt was around the lorry,
but I know he was ordered to be present.” Schmidt’s denial of this
evidence was corroborated by Golkel and Geirger.
In
pre-trial statements the accused Klein, Golkel, Hubner and Geiger gave
evidence incriminating Pahl, Pilz, Limberg, Thilker and Bott, but in
Court they wholly or in large part withdrew this testimony. A certain
amount of evidence was also called by the Defence on behalf of these accused.
p.47
Bott,
Limberg, Pilz, Pahl, Schmidt and Thilker were found not guilty.
Golkel,
Klein, Gaede, Hubner, Geiger, Jantzen, Koch and Zahringer were found
guilty, and sentenced to the following terms of imprisonment : Golkel
ten years, Klein and Gaede eight years, Hubner, Geiger and Jantzen
four years, Koch three years, and Zahringer two years.
These
sentences were all confirmed by higher military authority with the
exception of that passed on Jantzen ; this accused was later sentenced
to death in another trial concerning other war criminals, and this
last sentence was confirmed.
B.
NOTES ON THE CASE
1.
THE RELATIVE VALUE AS EVIDENCE OF
PRE-TRIAL STATEMENTS
It
may fairly be said that five accused, Pahl, Pilz, Limberg, Thilker and
Bott, were found not guilty as a direct result of the fact that Klein,
Golkel, Hubner and Geiger withdrew in Court wholly or in large part
the evidence which they had given in pre-trial statements. There were
also less sensational but similar recantations of evidence relating to
others among the accused. These
circumstances gave rise to some discussion as to the relative value as
evidence of pre-trial statements produced in Court in documentary form
and of oral testimony delivered in the witness box.
For
the Defence it was argued that the oral evidence before the Court was
the more reliable ; the previous statements were often in error though
not through deceit. Mistakes were due to the circumstances in which
they were made. It was said that : “ It is obvious that when the
accused were questioned after their arrest they were in a state of
great excitement ; un-prepared, they were taken out of their civil
life and were confronted with facts and questions for which they were
not prepared in any way. Names were read out to them too in connection
with the question of whether the persons mentioned had participated in
any actions. This might easily have caused confusion ; the general
excitement also helped. In the meantime the accused had the
opportunity to let these incidents pass through their minds in peace
and to think everything over. This has clarified the picture.
I think that the fact of the later discussion amongst the
accused has contributed less to the clarification of the picture than
the cold reflection on the part of the accused themselves.”
The
Prosecutor, on the other hand, submitted that the statements should be
accepted as true, whether the retractions were due to untruth or
confusion.
In
his summing up, the experienced Judge Advocate made some valuable
comments on the relative value of different kinds of evidence and on
the way in which evidence should be judged. His words were as follows
:
“
There is no method of placing evidence in rigid categories and
saying that one category must be believed rather more than another
category. You should consider each piece of evidence and consider
its source, and then decide for yourselves what weight you think
should
p.48
be
attached to that source. It is usual to say that evidence given in
the witness box on oath is likely to receive more weight than a
statement made not on oath. and not subject to cross-examination. In
this particular case each of the statements which were made by the
accused out of court were made in fact on oath ; so that in each
case if you are going to compare the statements they made in the
witness box with the statement they made before the trial, in each
case what they said was on oath, and the only difference is that in
one case they knew that afterwards they might be open to
cross-examination.
“
You have to consider the relative value which you attach to the
statement made on oath before Court and the statement made here in
Court in the light of all the circumstances. You are entitled to
consider, and should consider, the circumstances in which the
original statement was made-apparently made before contact with any
other accused, before knowing who was going to be accused, the
defence would say, and before perhaps they had turned the matter
over in their minds, at any rate as much as they had by the time
they came to court.
“
When you consider the evidence that they gave in court you are
entitled to bear in mind that all of them have been in contact with
each other for a certain length of time, and the vast majority of
them for quite a long time. We have had that put in the evidence,
and that there was therefore an opportunity for consultation and
discussion as to what actually did take place. It is a matter for
you to decide what influence you think that has had on the evidence
they have given. It
might be argued on one side that that meant that any errors that
were discovered were corrected ; on the other side it might be
argued that there had been opportunity to discuss what it was best
to say.
“
Those are general considerations for you to consider when you
consider the weight .to be attached to each source of evidence which
you take into account. Look in each case at the source ; look first
and foremost at the man who makes the statement, and make up your
minds what you think of him-whether you think he is honest, whether
you think he is dishonest, whether you think he is accurate, or
merely inaccurate just because he has got a faulty memory, or
because he was not really in a good position to see what was
happening, whereas another man may have been in a very good position
to see what was happening. I
think the point made by one of the defence counsel was that the
driver of the lorry was at a vital spot, he, ought to have seen
exactly which persons were there and which persons were not. Take
all these matters into consideration when you consider the value
which you think it right to place on each piece of evidence which is
given before you.
“
I would only add on this matter one thing. Each accused has gone
into the box. He was not compelled to go into the box ; he did so
entirely voluntarily. Sometimes one is apt to say, or tempted to say
: ‘ Well, he is the accused person. You cannot really place much
reliance upon what he says.’ That would be an entirely wrong
attitude in which to approach his evidence. Consider him just as any
other witness in the box ; weigh him up, weigh up whether you think
he is
p.49
honest
or not, whether you think he is accurate or not, and matters of that
kind, and let only one of your considerations be that he is the
accused person. Weigh him up just as you would weigh up any other
witness to see if you think you can rely upon what he tells you.”
At a later point, the Judge Advocate stressed again : “ There is
no rule that evidence given in the witness box must be given more
weight than evidence, statements, taken on oath outside the Court.
As I said earlier, take into account all the circumstances. . . .”
2.
QUESTIONS OF SUBSTANTIVE LAW
The
facts of the present case resemble in various ways those of the Trial
of Karl
Buck and Ten Others
(Footnote:
See pp. 39-44)
and
of the Trial of Werner Rohde
and Eight
Others (Footnote: See pp. 54-9
) particularly the former.
In
both the former of these cases and the present one, the offence
consisted in taking prisoners of war to a wood and shooting them
without legal justification. As the Judge advocate stated in his
summing up in the present trial, such acts were in violation of
Articles 2 and 3 of the Geneva Prisoners of War Convention of 1929.
These provisions run as follows :
“
Art. 2. Prisoners of war are in the power of the hostile Government,
but not of the individuals or formation which captured them.
“ They shall at all times be humanely treated and protected,
particularly against acts of violence, from insults and from public
curiosity.
“
Measures of reprisal against them are forbidden.”
“
Art. 3. Prisoners of war are entitled to respect for their persons and
honour. Women shall be treated with all consideration due to
their sex.
“
Prisoners retain their full civil capacity.” ’
The
victims, like a number of those whose killing was alleged in the
Trial of Karl Buck
and Ten Others, were members of the Special Air
Service,
and the defence pleaded was similar to the one put forward in that
case ; it was claimed on behalf of all of the accused that they acted
under superior orders, that they believed that the victims had been
tried and condemned to death for acting in support of the Maquis, and
that the accused were not in a position to find out whether the
shooting was illegal and had not the knowledge of International Law
necessary to judge for themselves.
(i)
The
Defence of Superior
Orders (Footnote:
As to the defence of superior orders see also p. 13)
Although
Dr. Isselhorst, here a Prosecution witness, was cross-examined
by
Defence Counsel regarding the Führerbefehl of 18th
October, 1942, (Footnote: See p. 42, footnote 2)
p.50
few references were made to it in the speeches for the Defence, where it
was
simply claimed that, in so far as any of the accused could be shown to
have
been concerned in the killings alleged, they were acting under superior
orders in performing the acts concerned.
Counsel acting on behalf of all the accused quoted the following passage
from paragraph 60 of Chapter VIII (The Courts
of
Law in
Relation to Officers
and
Courts-Martial) of the British
Manual
of Military Law:
“
. . . How
far a subordinate could plead the specific commands of a superior
officer-such commands being not obviously improper or contrary to
law-as justifying an injury inflicted on a civilian, is somewhat
doubtful. In most cases the fact of the orders having been given would
no doubt prove the innocent intent of the subordinate, and lead in
practice to his acquittal on a criminal charge.”
Counsel
claimed that the same applied in the present instance, and went on to
quote from paragraph 443 of Chapter XIV of the Manual the
following words : “ Undoubtedly, 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 obedience to military orders,
not obviously unlawful, is the duty of every member of the armed
forces and the latter cannot, in conditions of war discipline, be
expected to weigh scrupulously the legal merits of the order received.
. . .”
The provisions of German Military Law in force at the time of the deed
were, according to Counsel, even more favourable to the accused.
According to German law, the soldier would only escape punishment on
disobeying an order if he knew of its illegality ; it was not enough
to show that he was in a position to suppose its illegality. If he
carried out the order, he could only be punished if he exceeded his
instructions or if he knew that they entailed a breach of criminal or
military law. Such references to German law, said Counsel, were made
relevent by a principle of International Law that a soldier could not
be punished for an action which the law of his country compelled him
to do. He added that International Law recognized that subordinates
were not compelled to probe into the legality of an order.
Only if an order was obviously unlawful was it wrong for the
soldier to follow the order. Counsel claimed that the orders binding
the accused were more precise than those given to the persons found
guilty in the “ Llandovery Castle ” Case
(Footnote:
Annual
Digest of Public International Law Cases, 1923-24, Case No. 235 ;
British
Command
Paper (1921) Cmd. p. 45. In that case, two officers of the crew of a
German U-Boat were found guilty of firing at survivors from a sunken
hospital ship, despite the
fact
that they were acting on order from the U-Boat Commander.);
none
of the present accused could have referred to the decision in this
case of the German Supreme Court, in the event of disobedience on
their part ; and in any case, German courts were not bound by
precedent.
Counsel
admitted that Koch had in fact refused to obey the order of Oppelt
that he should take part in the shooting, but he pointed out that
these two accused were both N.C.O.‘s and claimed that the order
was, therefore, not binding.
p.51
In
his summing up the Judge Advocate made reference to the well-known
passage
from Oppenheim-Lauterpacht, International Law, 6th Edition
revised,
pp. 452-453, which is reproduced in paragraph 443 of Chapter XIV
of
the
Manual
of Military Law
(Footnote: See pp. 14-15).
It was no defence to plead superior
orders
when these were
obviously unlawful.as they were in the “ Llandovery
Castle
” Case.
Nor
did the defence hold good if an accused either knew
that the orders were unlawful or must be deemed from the surrounding
circumstances to have known that they were unlawful. (Footnote: See p.
16)
(ii)
The Remaining Defence Arguments
The
Defence did not claim that in fact a trial of the victims had been
held ; the plea put forward was that both Isselhorst and Ernst were
lawyers and the accused had to assume that the order which they
received was justified. The
latter were not able to judge scrupulously the legality of their
orders but could only ask themselves whether these orders could be
legal. In this connection Counsel claimed that the accused all knew of
the leader order which Isselhorst had mentioned. The accused knew that
there was some connection between the parachutists and the Maquis,
which were operating in the district, and it was therefore reasonable
for them to assume that the actions of the parachutists were illegal
since the Maquis movement itself was, according to the Defence, a
violation of International Law. As the latter constituted an example
of civilian intervention into warfare and did not fall within the
scope of Articles 1 and 2 of the Hague Convention No. IV of 1907, it
was contrary to International Law, and it was therefore not necessary
for the Defence to touch on the question whether the armistice between
Germany and France made the Maquis movement an illegal one.
Articles 1 and 2 of the Hague Convention, to which the Defence
referred, provide as follows :
“
Art. 1. The laws, rights, and duties of war apply not only to the
army,
but also to militia and volunteer corps fulfilling all the following
conditions :-
(1) They must be commanded by a
person responsible for his subordinates ;
(2) They must have a fixed distinctive sign recognizable at a
distance ;
(3) They must carry arms openly ; and
(4) They must conduct their operations in accordance with the laws
and customs of war.
In
countries where militia or volunteer corps constitute the army, or
form part of it, they are included under the denomination “ army.”
“
Art. 2. The inhabitants of a territory not under occupation who,
on
the approach of the enemy, spontaneously take up arms to resist the
invading troops without having had time to organize themselves in accordance
with Article 1, shall be regarded as belligerents if they
carry
arms openly, and if they respect the laws and customs of war.”
p.52
The
Prosecutor regarded paragraph 37 of Chapter XIV of the British
Manual
of Military Law
as a correct and relevant statement of International
Law
:
“
It is not, however, for officers or soldiers in determining their
conduct towards a disarmed enemy to occupy themselves with his
qualifications as a belligerent. Whether he belongs to the regular
army or to an irregular corps, is an inhabitant or a deserter, their
duty is the same : they are responsible for his person and must leave
the decision of his fate to competent authority. No law authorizes
them to have him shot without trial, and international law forbids
summary execution absolutely. If his character as a member of the
armed forces is contested he should be sent before a Court for
examination of the question.”
He
claimed that further paragraphs of Chapter XIV corresponded to the
provisions of the Geneva Prisoners of War Convention, 1929, regarding
the trial of prisoners, were binding on the authorities holding the
captives whose execution was alleged. The relevant passages of the
Geneva Convention are contained in Articles 60-67. Article 60 states
: “ At the commencement of a judicial hearing against a prisoner of
war, the detaining Power shall notify the representative of the
protecting Power as soon as possible, and in any case before the date
fixed for the opening of the hearing.
” . . . Article 62 gives an accused prisoner the right to be
assisted by a qualified advocate of his own choice. Article 66
provides that : “ If sentence of death is passed on a prisoner of
war, a communication setting forth in detail the nature and the
circumstances of the offence shall be addressed as soon as possible to
the representative of the protecting Power for transmission to the
Power in whose armed forces the prisoner served. The sentence shall
not be carried out before the expiration of a period of at least three
months from the date of the receipt of this communication by the
protecting Power.” The Judge Advocate said that there was evidence,
not of any trial, but only of a decision taken by Dr. Ernst, possibly
in consultation with Dr. Isselhorst.
He agreed with the view that, even if the victims had been carrying
on operations in breach of International Law, it was not lawful to
execute them without trial.
The
Prosecutor said that there was ample evidence that the victims were in
uniform when captured, and, in support of his. claim that their
activities were legal, he quoted paragraph 45 of Chapter XIV of the Manual
:
“ Train wrecking, and setting on fire camps or military depots are
legitimate means of injuring the enemy. when carried out by members of
the armed forces.”
He
submitted that the activities of the British troops involved were
covered by these terms. As the Judge Advocate reminded the Court,
however, the Defence claimed, not that the activities of the
parachutists were actually illegal but only that it was reasonable in
the circumstances for the accused to regard them as illegal. The Judge
Advocate concluded that it would be possible for the Court to proceed
on the assumption that the victims were
entitled
to the protection of the Geneva Prisoners of War Convention.
p.53
(iii) The
Scope of the Words “ Concerned in the Killing ”
The
trial is also of legal interest in that it illustrates the various
courses of action which have been held to make an accused guilty of
the war crime of being “ concerned in the killing ” of prisoners
of war. On this wording the Judge Advocate, in his summing up, made
the following comment :
“
It is for the members of the Court to decide what participation is
fairly within the meaning of those words. But it is quite clear that
those words do not mean that a man actually had to be present at the
site of the shooting ; a man would be concerned in the shooting if he
was 50 miles away if he had ordered it and had taken the executive
steps to set the shooting in motion. You must consider not only
physical acts done at the scene of the shooting, but whether a
particular accused ordered it or took any part in organizing it, even
if he was not present at the wood.”