Source: Law-Reports of Trials of War Criminals, The United Nations War Crimes Commission, Volume III, London, HMSO. 1948
[Some sections have been highlighted provisionally until hyperlinks can be added to appropriate files. Page numbers precede text]
CASE No. 13
Trial of ROBERT
PERMANENT MILITARY TRIBUNAL AT STRASBOURG, 23RD APRIL TO 3RD MAY,
1946, AND COURT OF APPEAL, 24TH JULY, 1946
The facts adduced by the Indictment under this head are these :
(i) Compulsory labour service was introduced in 1941. When, in August, 1941, the first contingents received orders to appear before the Medical Boards, the parents of the young people were promised that they would not be sent to Germany. As a matter of fact, the first transports bound for German labour camps left in October, 1941.
(ii) Expulsion from Alsace into unoccupied France was the method used by the Germans before 1942 to get rid of persons regarded by them as undesirable.
Many Jews, foreseeing events, had left in haste, before the arrival of the Germans, taking with them their most treasured belongings. But for most the persecutions commenced immediately. At Mulhouse for instance they had to meet daily and clean the streets of the town, and on 16th July 1940, all of the Jews of Colmar were called together at the Police Station, and, each furnished with a suit-case and 2,000 francs, they were crowded together in trucks and carried to the lines of demarcation where the French received them. Wagner himself stated that 22,000 Jews had been affected by these first expulsions. Before the declaration of war there were in Alsace around 50,000 Jews, including German refugees.
After the Jews, the French had to suffer. Some French officials of whom the Germans had had need for the transmission of powers were able to leave and take even their furniture, personal property, but these were rare exceptions. The great majority were expelled in August 1940, under the same conditions as the Jews, each with a suitcase and 2,000 francs. Then came the. turn of the various groups of Francophile Alsatians. Some particular expulsions were put into effect in the September, October and November of 1940, but the great " cleaning up " took place in the month of December. It was the SS which carried these out with their usual brutality. Everywhere, in all the towns and villages, they took away persons whom they suspected, all the social classes being affected by this stroke. After these mass expulsions there took place certain individual expulsions, of which the greater part of the victims stayed for a greater or lesser time in the camp of Schirmeck.
(iii) Deportation to Germany became the practice from the summer of 1942 onwards. Special camps were created for deported Alsatians at Ulm and Breslau. Deportation was the normal sanction taken against families if one of their members had not complied with call-up orders for military or labour service, or even for the failure of a child to join the Hitler Youth.
The lot of all these unfortunate people was terrible. They lived under strict supervision in camps without comfort, children often being separated from their parents.
(The indictment then went on to describe in some detail the eventual fate of the property of those deported. The belongings of all the exiles were confiscated and sold for the benefit of the Reich ; for more than three years these belongings were sent twice a month to public auction in the big towns. The most valuable movables disappeared as if by magic. The Germans took on hire furnished apartments, then went away again taking away the furniture. Again, the farms of more than 500 peasants who had been deported because their children had refused to present themselves for medical inspection for labour services or military services were immediately given to German peasants.)
Wagner was the only accused who was indicted on a charge of " illegally depriving individuals of their liberty." In his defence he claimed to have been ignorant of many of the alleged facts and in particular to have disregarded Hitlers orders in favour of the population of Alsace. He had received definite orders from Hitler to expel several hundred thousand Alsatians ; in fact only about 25,000 had been forced to leave.
Complete records of the trial not being available, such evidence as was produced during the hearing of the case cannot be dealt with in this report. Some indications of the evidence relied upon both by the Prosecution and the Defence, can, however, be gathered from references in the Indictment to depositions made in the course of the Preliminary Enquiry, and from the Judgment.
Apart from the mutually incriminating evidence of the accused themselves, the Court heard, inter alia, the accounts given of the case of Theodore Witz and the Ballersdorf case by the lawyer who had acted as counsel for the defence in these cases, and of one of the Prosecutors of the Special Court. In the case of the four murdered airmen, the depositions of the maître gendarme who had been summoned to take charge of the prisoners, were available. As will be seen, the charges of illegal recruitment were brought against the accused in two forms ; on the one hand they were indicted on the general charge of having recruited French nationals for a Power at war with France, on the other hand they were charged with having caused the incorporation into the German Army of six individual Alsatians, who had been called up at various dates between January 1943 and 1944. One of these six men was heard during the trial ; he made his depositions not as a sworn witness, but as a person called upon to give information without taking an oath. Among the evidence considered by the Court were also depositions made by Keitel, Ribbentrop and Lammers, obtained through a commission rogatoire of the juge dinstruction.
The Indictment dealt at length with the general line of defence taken by the accused during the Preliminary Enquiry.
In most cases they had denied any knowledge of the criminal acts with which they were charged. Apart from this, they relied mainly on two defences : (a) the denial of the illegality of the acts or measures which formed the substance of the charges, (b) the plea of superior orders.
In regard to the charge of illegal recruitment Wagner maintained on the one hand that, according to reports which he had received from the Police
and the Party formations, the majority of Alsatians were anxious to join the German Army, but were deterred from enlisting as volunteers by fear of the disapproval of their compatriots ; conscription enabled them to gratify their wish without any anxiety. On the other hand he claimed that in his opinion the recruitments had not been illegal, Alsace having been incorporated in the Reich. (See below),
(i) Plea to the Jurisdiction of the Court
Counsel for the accused Grüner offered a Plea to the Jurisdiction of the Court. (Under Art. 81 of the Military Code, pleas to the jurisdiction of the Court must be raised before the hearing of witnesses.)
The Plea was rejected by the Tribunal on the following grounds :
(ii) Plea relating to the status of Alsace
As has been seen, Wagner claimed that his recruitment had not been illegal, Alsace having been incorporated in the Reich. In this connection,
Wagner referred to his interview with Hitler, shortly before his appointment as Gauleiter and Governor of Alsace, to the terms of the Armistice denouncing the Treaty of Versailles, and to certain " tacit or secret agreements " concerning the status of Alsace. (Footnote: See pp. 25 and 36.)
The Prosecution denied that Wagner could have held in good faith his view that his recruitments were legal, and in support of this contention adduced the following facts :
Besides, Wagners attention had been drawn to the illegality of introducing compulsory military service in Alsace by high officials of his own Civil Administration and by responsible military circles in Alsace.
Other accused merely repeated Wagners contention that Alsace was part of the Reich by virtue of the Armistice of 1940, which had declared the Treaty of Versailles null and void.
(iii) The Plea of Superior Orders
Wagner occasionally referred to orders he had received from Hitler. All other accused claimed to have acted on orders from Wagner, either in the latters capacity as Head of the Civil Administration or as Gau1eiter. (Footnote: See p. 54)
(iv) The Challenge of Wagners Counsel to the legality of applying the Ordinance of 28th August, 1944
The Tribunal rejected the contention of Wagners counsel that the retroactive application of the Ordinance was not legal, on the following grounds :
The Ordinance in question provides in its Art. 1 that French Military Tribunals shall be competent to try under the French law in force and in accordance with the provisions of the Ordinance, such enemy nationals and non-French agents who are or were in the service of the enemy administration or interests, as are guilty of crimes or offences committed since the beginning of hostilities either in France or in any territory under French authority.
Wagner, the decision went on to say, was a German national. He was tried for crimes punishable under the Penal Code and committed between 1940 and 1944, i.e., after the beginning of hostilities. These crimes had been committed in Alsace, i.e., in French territory.
The Ordinance in question establishes the jurisdiction of Military Tribunals to try enemy nationals for such offences as are not justified by the laws and customs of war, even if they were committed under the pretext of or during state of war.
The Tribunal, whose jurisdiction had been duly established by the Order for Trial of 6th April, 1946, which order had become final, was not competent to decide on the correctness of applying the Ordinance.
The decision further referred to directives issued by the Ministry of War, Direction of Military Justice, and to its own decision rejecting the plea to its jurisdiction, which had been offered by counsel for the accused Grüner.
The trial having been opened on 23rd April, 1946, the Presiding Judge ruled that in view of the fact that the accused Huber had not presented himself within five days of the issuing of the order to appear, made by the Judge under Art. 119 of the Military Code, judgment would be passed in default.
After the interrogation of the accused for purposes of identification, the Commissaire du Gouvernement (Prosecutor) made a motion for the disjunction or severance of the trial against the accused Semar. The application was granted by the Court and the disjunction of the trial ordered on the grounds that Semar had been handed over to the Strasbourg Military Tribunal after the closure of the Preliminary Enquiry and had therefore not been interrogated by the juge dinstruction ; that the effective administration of justice required that the trial and judgment against Semars co-accused should not be postponed ; and finally that the disjunction was not prejudicial to the interests of the other accused. The Tribunal based its decision on Art. 474 of the Code of Criminal Procedure, which provides that the absence
(contumace) of any accused must on no account lead to an adjournment or delay in the proceedings against the co-defendants who are present. At the same time the Tribunal ordered a supplementary information to be instituted and conducted by one of the Judges of the Tribunal.
The President, in accordance with Art. 79 of the Military Code, then ordered the reading of the Order convening the Tribunal, of the decision committing the case to the Tribunal, of the Indictment and of a number of other documents ; he gave a summary of the crimes for which the accused were prosecuted and instructed them and their counsel of their rights and duties under the Military Code and the Code of Criminal Procedure.
After hearing the plea of Grüners Counsel to the Jurisdiction of the Tribunal, the latter proceeded to the interrogation of the defendants Schuppel, Gädeke and Röhn. Before the interrogation of Wagner, application was made by his counsel for a number of new witnesses, among them Keitel, Ribbentrop and Lammers, to be heard. The Tribunal rejected the application for the time being, ordering the " junction of the incident to the substance of the case " and reserved its final decision on the matter until the hearing of the other witnesses had been completed. The decision was based on the consideration that the trial was not sufficiently advanced to enable the judges to decide whether the hearing of the proposed new witnesses was essential to establish the truth.
The following days of the trial were devoted to the interrogation of Wagner, and the hearing of witnesses and a number of persons called to give information.
On the seventh day of the trial, the Presiding Judge, by virtue of his discretionary power under Art. 82 of the Military Code, ordered a number of documents, received by the Court after the closure of the Preliminary Enquiry, to be filed with the records of the case. Among these documents were the depositions of Keitel, Ribbentrop and Lammers, obtained through a commission rogatoire of the juge dinstruction.
The hearings were closed on the eighth day of the trial. In his final address the Prosecutor required that the accused be convicted and sentenced in accordance with the Indictment.
Then followed the final addresses by counsel for the defence. In his plaidoyer, counsel for Wagner requested a decision by the Court on the legality of applying the Ordinance of 28th August, 1944, retroactively. (Footnote: See p. 38)
Finally the Tribunal passed a decision on the application for the hearing of new witnesses made earlier in the trial by counsel for Wagner.
The application was rejected on the following grounds :
Counsel for Wagner had been free during the Preliminary Enquiry to communicate with his client. He had been notified of the date of the trial on 7th April, 1946, and had access to the documents relating to the case. Both Wagner and his counsel had received the instructions concerning the naming of witnesses in accordance with Art. 179 of the Military Code. Wagner had thus been given sufficient time to prepare his defence. The addresses by counsel for the Prosecution and for the Defence had supplied sufficient material on which the judges could base their decision. The
hearing of further witnesses was therefore not essential to establish the truth.
At every stage of the trial as set out above, the Prosecution, the defendants and their counsel were invited to make their observations, the defence " having the last word."
All decisions mentioned above were announced as having been arrived at by a majority vote, in accordance with Art. 91 of the Military Code, which, provides that " the Judgment shall merely state the fact of the majority of votes without indicating the number of pro and contra votes, non-compliance with this provision involving the nullity of the Judgment."
Under Art. 88 of the Military Code, which provides that the :
the Tribunal was called upon to examine a total of 207 questions for their findings. These questions fall into the following groups :
(a) A group of questions relating to the incriminated facts and their classification. The Tribunal was asked whether the deaths of Theodore Witz and the 14 accused of the Ballersdorf case were due to wilful homicide and whether such homicide had been committed with premeditation ; whether in the case of the four airmen wilful homicide had been committed and in each case whether such homicide was preceded, accompanied or followed by some other crime ; whether six individual Alsatians had at definite dates in 1943 and 1944 been enrolled in the German army.
The findings of the Tribunal on each of these 44 questions was in the affirmative.
(b) Questions relating to Wagner
In regard to the murders of Theodore Witz and 13 of the accused in the Ballersdorf case the Tribunal considered the question whether Wagner, in abusing his power or authority, had been an accomplice in the crime by dictating or ordering the sentence to be awarded by the Special Court. Wagner was found guilty on the charge of complicity in these murders.
He was found not guilty of having ordered the 14th accused, Müller, to be executed without sentence.
His complicity in the murder of the airmen was examined by reference to the question whether, in abusing his power or authority he had given orders for allied airmen to be killed on the spot. He was found not guilty on this charge.
He was found guilty of having during the years 1940 to 1942 incited French nationals to bear arms against France, by addressing to them appeals to join the Wehrmacht at a time when France was at war with Germany. He was further found guilty of having recruited French nationals for the German armed forces, and of having caused the recruitment of the six Alsatians by signing the Ordinance of 25th August, 1942.
Wagner was the only accused in regard to whom the question was asked whether he was guilty of having, during the years 1940 to 1944, arbitrarily
deprived French nationals of their liberty. The Tribunal found him guilty on this charge, and answered in the affirmative the further question whether he had during the material period held the de facto executive power in Alsace.
(c) Questions relating to Röhn
The Tribunal considered the question whether Röhn was guilty of having incited French nationals to join the Wehrmacht, of participation in illegal recruitment in general and in the recruitment of the six Alsatians, the first by circulating Wagners orders and instructions, concerning compulsory military service, the latter by passing on the circular letter concerning persons disobeying call-up orders. He was found guilty on all these charges.
He was found not guilty of having given instructions for the killing of allied airmen, and thus of complicity in the four murders.
In regard to each of the charges the Tribunal considered the. question whether Röhn had acted on superior orders. This question was answered in the negative throughout..
(d) Questions relating to Schuppel
Schuppel was found guilty on the charges (a) of having incited French nationals to bear arms against France, (b) of participation in illegal recruitment in general on the ground that he had circulated Wagners orders and instructions, in particular the order concerning sanctions against Alsatian deserters and persons not complying with their military duties ; (c) of participation in the illegal recruitment of one of the six Alsatians, this latter crime having been committed by him by issuing the circular letter of 13.12.43 concerning sanctions against the families of deserters.
He was found not guilty of having been an accomplice in the murder of the four airmen by approving Wagners relative orders.
The Tribunal denied that he had been acting on superior orders.
(e) Questions relating to Gädeke
Gädeke was found guilty on the charge of illegal recruitment in general and of participation in the recruitment of the six Alsatians, the first on the ground that he had circulated Wagners orders and instructions concerning compulsory military service, the latter because of his authorship of the circular threatening sanctions against resisters and their families.
He was found guilty of complicity in the murder of Theodore Witz on the ground that he had taken down Wagners order to the Court to pass sentence of death, and in the murder of the 13 Ballersdorf men on the ground that he had passed on to the Prosecutor Wagners order to demand sentence of death. .
He was not found to have acted on superior orders.
(f) Questions relating to Grüner
Grüner was found guilty of the premeditated murder of the four airmen, each offence being preceded, followed or accompanied by another crime. The Tribunal found that he had not acted on the orders of his superiors.
(g) Questions relating to Luger
The Tribunal examined the questions whether Luger, by demanding sentence of death against the accused in the Ballersdorf trial under pressure from Wagner was an accomplice in the murder of the 13 men. He was found guilty on this charge. The Tribunal, however, came to the conclusion that he had acted on superior orders.
(h) Questions relating to Huber
Huber was found guilty of complicity in the murder of Theodore Witz and the 13 Ballersdorf men on the ground that under pressure from Wagner he had pronounced death sentences against them. The Tribunal found that he had not acted on superior orders.