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German military law has a long history.
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German military law has a long history.
Drumhead courts-martial in the German lands had existed since the Early modern period.
The trial of Peter von Hagenbach by an ad hoc tribunal of the Holy Roman Empire in 1474 was the first "international" recognition of commanders' obligations to act lawfully. [1] [2] Hagenbach was put on trial for atrocities committed during the Burgundian Wars against the civilians of Breisach. Standing accused of allowing his troops to commit mass murder and war rape, which, "he as a knight was deemed to have a duty to prevent", and of personally committing perjury, Hagenbach replied that he could not be held criminally responsible because he only followed orders [1] [3] from the Duke of Burgundy, Charles the Bold, against whose rule the city of Breisach had rebelled. [4] The court, however, rejected the superior orders defence. Peter von Hagenbach was found guilty of war crimes and executed by beheading at Breisgach on 4 May 1474. [5] Despite the fact there was no explicit use of the term command responsibility, the trial of Peter von Hagenbach is seen as the first war crimes prosecution based on this principle. [5] [6]
During the Thirty Years' War several Imperial states established military tribunals modelled on the jurisdiction of the Swedish Army. In Brandenburg-Prussia, justice was dispensed by special Auditeur attorneys through three official channels.
After the Prussian-led Unification of Germany, the German Empire with effect from 1 October 1900 established a particular court-martial jurisdiction (German : Militärgerichtsbarkeit) to try soldiers of the German Army, with the Reichsmilitärgericht (RMG) in Charlottenburg as the supreme court. In Prussia it replaced the Generalauditoriat agency, while the Kingdom of Bavaria retained the right to pass judgements to members of the Bavarian Army by a separate (the 3rd) senate. The presiding judge in the rank of a general or admiral was appointed directly by the German Emperor.
During World War I, Imperial German military courts routinely tried both their own soldiers, POWs, and civilians who were alleged to have knowingly violated German military law. The defense arguments of both superior orders and also, in contradiction of the Roman legal principle of Ignorantia juris non excusat , ignorance of the law [7] were often taken very seriously by German military courts in the German Empire, and were sometimes considered grounds for granting leniency.
The Prussian Ministry of War also founded a Bureau to investigate allegations of both Allied and German war crimes, including alleged Franc-Tireur activity by Belgian civilians, 157 alleged massacres of German POWs by the French Army on the Western Front, and the Baralong Incidents and other alleged British war crimes on both land and at sea. [8]
Following complaints by the British Foreign Office, Imperial German Army Sergeant Karl Heynen, was court martialed for allegedly using unnecessary brutality against 200 British and 40 Russian POWs, who were under his command as forced labourers at the Friedrich der Grosse coal mine at Herne, in Westphalia. Sgt. Heynen stood accused of regularly using corporal punishment, including his fists and rifle butt and was also tried for having allegedly driven a British POW named Cross insane through various cruelties, including throwing the POW into a shower bath with alternating hot and cold water, for half an hour. It was further alleged that, after a British POW named MacDonald had escaped and been recaptured, that Heynen had hit MacDonald with his rifle butt, knocked him down and kicked him. Also, on October 14, 1915, Heynen stood accused of having threatened the POWs under his command with summary execution if they did not immediately return to work during an attempted strike action. Sgt. Heynen was court-martialed, found guilty, and sentenced to fourteen days' "detention in a fortress", with suspended sentence until after the end of the war. Heynen was reassigned to active service at the Front and subsequently awarded the Iron Cross for courage under enemy fire. At the insistence of the British Government after the Armistice, however, double jeopardy was set aside and Sgt. Heynen was retried at the Leipzig war crimes trials for the same offences. [9]
Of those enemy nationals who were prosecuted, especially well-known is the case of Edith Cavell, a British Intelligence operative under International Red Cross cover, [10] who was court-martialled and sentenced to death in Occupied Belgium for, among many other things, helping an estimated 200 escaped British POW's to cross the lines and return to active service –which in wartime was indeed a death penalty offence for civilians under the German military law in the German Empire. Cavell was also convicted of perfidy, for having used the international legal protection given by her position as a Red Cross nurse as a cover for belligerent activity during wartime. Cavell was executed by firing squad on October 12, 1915.
Belgian national Gabrielle Petit, a fellow British Intelligence field agent for La Dame Blanche spy ring in occupied Belgium, was similarly convicted of espionage and executed by firing squad on 1 April 1916.
After his merchant ship was captured off German-occupied Belgium, English captain Charles Fryatt was court-martialled by the German Imperial Navy for "illegal civilian warfare", "being a Franc-Tireur", and attempting to ram and sink SM U-33 on 28 March, 1915. The trial, verdict, and death sentence were also covert retaliation for Winston Churchill's orders to both the Royal Navy and British merchant seaman to unleash total war against U-boat crews, [11] which had already resulted in one of the most infamous British war crimes of the Great War: the 19 August 1915 massacre of the shipwrecked crew of SM U-27 in the Baralong incidents. [12] [13] Charles Fryatt was executed by a Naval firing squad in Bruges on 27 July 1916.
After World War I, the Weimar Republic (1919-1933), abolished separate courts-martial by Article 106 of the Weimar Constitution, but they were revived by the Nazi German government after it had seized power during the Machtergreifung and enacted a special law on 12 May 1933. Initially the Reichsgericht in Leipzig, from 1 December 1934 the "People's Court" (Volksgerichtshof) in Berlin, acted as final appellate court until the Reichskriegsgericht (RKG) was established as high court of the Wehrmacht armed forces by another directive with effect from 1 October 1936. The Reichskriegsgericht was based in the former RMG building on Witzlebenstraße in the Charlottenburg district of Berlin.
A directive on a special criminal law of war was already enacted on 17 August 1938 by OKW chief Wilhelm Keitel at the behest of Führer Adolf Hitler. From the beginning of World War II, the court convicted not only Wehrmacht members but also prisoners-of-war and civilians in the area of operations. The Reichskriegsgericht acted as the first and last resort for 44 criminal offenses under penalty of death such as the following:
With the arms buildup and continued warfare, the number of Wehrmacht courts-martial increased to over 1,000. On 13 May 1941 Hitler had Keitel pass a directive, according to which any Wehrmacht officer had the authority to execute accused civilians in the area of Operation Barbarossa and the Eastern Front without trial. Against the laws of war, the official repeal of criminal prosecution led to widespread hostage-taking, mass executions, burning and looting by German forces.
At the same time, according to historian Alfred Maurice de Zayas, senior Wehrmacht commanders with more traditional views of service honour insisted upon court martial prosecutions of German soldiers who stood accused of crimes against civilians in occupied countries or for massacres or other mistreatment of POWs. In fact, there are numerous documented cases of court martial convictions and even executions by hanging or firing squad in such cases. Furthermore, several senior officials of the legal departments of the German armed forces became involved in the German resistance to Nazism. Several military lawyers and judges, including Karl Sack, Rudolf Schleicher, and Helmuth James von Moltke, were executed by following the failure of the July 20th Plot against the life of Adolf Hitler. [14]
On March 8, 1945, Chancellor Adolf Hitler authorized the use of Fliegendes Sonder-Standgericht (Flying Courts-Martial) to try German armed forces in the field. [15] [16] The use of "flying" refers to their mobility and may also refer to the earlier "flying courts martial" held in Italian Libya. Italian military judges were flown by aircraft to the location of captured rebels where the rebels were tried in a court martial shortly after capture.
Between 1939 and 1945 the Reichskriegsgericht in Berlin was responsible for over 1,400 executions including those by the Red Orchestra. In 1943 the court was transferred to Torgau, where it was based until the end of the war. In 1951 the building became the temporarily base of the Berlin Kammergericht (appellate court), since 2005 it is a private estate.
After the German Instrument of Surrender, Nazi courts martial were not abolished by the Allied Control Council until 20 August 1946. In 2002 and 2009 the German Bundestag parliament finally passed bills to suspend the verdicts against Wehrmacht for desertion and homosexual activity as well as against "war traitors".
Since 1949, the Federal Republic of Germany has no special military courts. Criminal acts committed by soldiers are tried in ordinary criminal courts by civilian judges.
Article 96 paragraph 2 of German Basic Law (Grundgesetz) allows the government to create specialised military courts in case of war and for soldiers sent abroad, subject to a federal law. Such a law has not been passed.
Smaller offences are being handled by disciplinary courts which are attached to the administrative court system. They may only pronounce disciplinary punishments, but no criminal sentences (e.g. no imprisonment, except 21 days of detention in the watch room).
The 1474 trial of Peter von Hagenbach has been cited to argue against the ongoing efforts in modern Australia seeking the retrial or posthumous pardon of Breaker Morant, Peter Handcock, George Witton, and Henry Picton, who were court martialed and convicted of war crimes by the British Army during the Boer War. [17]
Alfred Josef Ferdinand Jodl was a German Generaloberst who served as the Chief of the Operations Staff of the Oberkommando der Wehrmacht – the German Armed Forces High Command – throughout World War II.
Wilhelm Bodewin Johann Gustav Keitel was a German field marshal who held office as chief of the Oberkommando der Wehrmacht (OKW), the high command of Nazi Germany's armed forces, during World War II.
The Oberkommando der Wehrmacht was the supreme military command and control office of Nazi Germany during World War II. Created in 1938, the OKW replaced the Reich Ministry of War and had oversight over the individual high commands of the country's armed forces: the army, navy, and air force.
The Commando Order was issued by the OKW, the high command of the German Armed Forces, on 18 October 1942. This order stated that all Allied commandos captured in Europe and Africa should be summarily executed without trial, even if in proper uniforms or if they attempted to surrender. Any commando or small group of commandos or a similar unit, agents, and saboteurs not in proper uniforms who fell into the hands of the German forces by some means other than direct combat, were to be handed over immediately to the Sicherheitsdienst for immediate execution.
In civil and military jurisprudence, summary execution is the putting to death of a person accused of a crime without the benefit of a free and fair trial. The term results from the legal concept of summary justice to punish a summary offense, as in the case of a drumhead court-martial, but the term usually denotes the summary execution of a sentence of death. Under international law, a combatant's refusal to accept his opponent's lawful surrender and offer No quarter, by killing the surrendering combatants.
The subsequent Nuremberg trials were twelve military tribunals for war crimes committed by the leaders of Nazi Germany (1933–1945). The Nuremberg Military Tribunals occurred after the Nuremberg trials, held by the International Military Tribunal, which concluded in October 1946. The subsequent Nuremberg trials were held by U.S. military courts and dealt with the cases of crimes against humanity committed by the business community of Nazi Germany, specifically the crimes of using slave labor and plundering occupied countries, and the war-crime cases of Wehrmacht officers who committed atrocities against Allied prisoners of war, partisans, and guerrillas.
The 1902 court-martial of Breaker Morant was a war crimes prosecution that brought to trial six officers – Lieutenants Harry "Breaker" Morant, Peter Handcock, George Witton, Henry Picton, Captain Alfred Taylor and Major Robert Lenehan – of the Bushveldt Carbineers (BVC), an irregular regiment of mounted rifles during the Second Boer War.
The High Command Trial, also known initially as Case No. 12, and later as Case No. 72, was the last of the twelve trials for war crimes the U.S. authorities held in their occupation zone of Germany in Nuremberg after the end of World War II. These twelve trials were all held before U.S. military courts, not before the International Military Tribunal, but took place in the same rooms at the Palace of Justice. The twelve U.S. trials are collectively known as the "subsequent Nuremberg trials" or, more formally, as the "Trials of War Criminals before the Nuremberg Military Tribunals" (NMT).
During World War II, the German Wehrmacht committed systematic war crimes, including massacres, mass rape, looting, the exploitation of forced labour, the murder of three million Soviet prisoners of war, and participated in the extermination of Jews. While the Nazi Party's own SS forces was the organization most responsible for the genocidal killing of the Holocaust, the regular armed forces of the Wehrmacht committed many war crimes of their own, particularly on the Eastern Front.
In the practice of international law, command responsibility is the legal doctrine of hierarchical accountability for war crimes, whereby a commanding officer (military) and a superior officer (civil) is legally responsible for the war crimes and the crimes against humanity committed by his subordinates; thus, a commanding officer always is accountable for the acts of commission and the acts of omission of his soldiers.
A war crimes trial is the trial of persons charged with criminal violation of the laws and customs of war and related principles of international law committed during armed conflict.
Superior orders, also known as the Nuremberg defense or just following orders, is a plea in a court of law that a person, whether a member of the military, law enforcement, or the civilian population, should not be considered guilty of committing crimes that were ordered by a superior officer or official.
The Reichskriegsgericht was the highest military court in Germany between 1900 and 1945.
The Leipzig war crimes trials were held in 1921 to try alleged German war criminals of the First World War before the German Reichsgericht in Leipzig, as part of the penalties imposed on the German government under the Treaty of Versailles. Twelve people were tried, and the proceedings were widely regarded at the time as a failure. In the longer term, they were seen by some as a significant step toward the introduction of a comprehensive system for the prosecution of international law violations.
Charles Algernon Fryatt was a British merchant seaman who was court martialled by the Imperial German Navy for attempting to ram a German U-boat in 1915. When his ship, the SS Brussels, was captured by the Germans off occupied Belgium in 1916, Captain Fryatt was court-martialled by German military law and sentenced to death for "illegal civilian warfare". He was executed by firing squad near Bruges, Belgium. In 1919, his body was reburied with honours in the United Kingdom.
Ernst Ulrich Hans von Leyser was a general in the Wehrmacht of Nazi Germany during World War II who commanded several army corps.
Gustav Heistermann von Ziehlberg was a war criminal and a general in the Wehrmacht during World War II. He was a recipient of the Knight's Cross of the Iron Cross. Convicted in connection with the 20 July plot, he was sentenced to death and executed by firing squad. von Ziehlberg was married to Anneliese von Tschischewitz, with whom he had four daughters and two sons.
The relationship between the Wehrmacht and the Nazi Party which ruled Germany has been the subject of an extensive historiographical debate.
The myth of the clean Wehrmacht is the negationist notion that the regular German armed forces were not involved in the Holocaust or other war crimes during World War II. The myth, heavily promoted by German authors and military personnel after World War II, completely denies the culpability of the German military command in the planning and perpetration of war crimes. Even where the perpetration of war crimes and the waging of an extermination campaign, particularly in the Soviet Union – where the Nazis viewed the population as "sub-humans" ruled by "Jewish Bolshevik" conspirators – has been acknowledged, they are ascribed to the "Party soldiers corps", the Schutzstaffel (SS), but not the regular German military.
Hitler's Generals on Trial: The Last War Crimes Tribunal at Nuremberg is a 2010 book by Canadian historian Valerie Hébert dealing with the High Command Trial of 1947–1948. The book covers the criminal case against the defendants, all high-ranking officers of the armed forces of Nazi Germany, as well as the wider societal and historical implications of the trial. The book received generally positive reviews for its mastery of the subject and thorough assessment of the legacy of the trial.