People
are sane, peoples are insane - the Leipzig War Crime Trials of 1920.
By Ashley Hyne |
Introduction
War is a contest between
competing legal orders. In every street battle, with every bullet
fired and every bomb dropped, one side seeks to obliterate the existing
or proposed order and replace this with or retain its own 'order'.
History contains few examples where victors have resisted the urge
to impose their own order and control.In September 1919,
President Woodrow Wilson gave an address at Pueblo, Colorado in
support of the League of Nations. Of the treaty of peace, ratified
at the Palace of Versailles, earlier that year, he said:
It is a people's treaty, that accomplishes by a great sweep of practical
justice the liberation of men who never could have liberated themselves,
and the power of the most powerful nations has been devoted not
to their aggrandizement but to the liberation of people whom they
could have put under their control if they had chosen to do so.
Not one foot of territory is demanded by the conquerors, not one
single item of submission to their authority is demanded by them.
The men who sat around that table in Paris knew that the time had
come when the people were no longer going to consent to live under
masters, but were going to live the lives that they chose themselves,
to live under such governments as they chose themselves to erect.
That is the fundamental principle of this great settlement.
Much has been said of that great settlement being one of the causes
of the 2nd World War. Less that the European analysis with which
Wilson gave to those 'who no longer consent to live under masters'
ignored the struggle for self-determination that was being experienced
throughout the world (1). But by seeking to dramatically alter the
way in which conquerors considered defeated nations the treaty was
a thoroughly modern document (2).
In the immediate aftermath of the War there was a desire to bring
to justice those who had been responsible for breaching rules of
combat and committing atrocities. A 'Commission on the Responsibility
of the Authors of the War and on Enforcement of Penalties' was created.
The Commission's findings were two although neither of which came
to be implemented. Firstly, the Commission cited many offences arising
from the war, in particular in Serbia and Macedonia but a legal
basis for these 'offences' was not explained. Politis, the Greek
foreign minister, had called for a new category of war crimes designated
'crimes against the laws of humanity'. Lloyd George backed the proviso,
extending its ambit 'for acts against individuals, atrocities of
all sorts committed under orders' (3).
The American delegation had concern that the grounds by which the
Commission sought to bring justice (that of 'in violation of humanity')
be confined to 'a certain standard, to be found in books of authority
and in the practice of nations' (4).
Secondly, the Commission called for the establishment of a High
Tribunal, exempting enemy persons who had conspired in the atrocities
to be exempt from amnesty, yet no tribunal was ever built or proposed
building identified. As a result the findings of the Commission
were not enshrined within the Treaty of Versailles. |
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The
Treaty Articles
The key Articles of the Treaty
with regard to the trying of those accused of war crimes were articles
228 thru 230. These were as follows:
Article 228
The German Government recognises
the right of the Allied and Associated Powers to bring before military
tribunals persons accused of having committed acts in violation of
the laws and customs of war. Such persons shall, if found guilty,
be sentenced to punishments laid down by law.
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This provision
will apply notwithstanding any proceedings or prosecution before
a tribunal in Germany or in the territory of her allies.
The German Government shall hand over to the Allied and Associated
Powers, or to such one of them as shall so request, all persons
accused of having committed an act in violation of the laws and
customs of war, who are specified either by name or by the rank,
office or employment which they held under the German authorities.
Article 229
Persons guilty of criminal acts
against the nationals of one of the Allied and Associated Powers
will be brought before the military tribunals of that Power.
Persons guilty of criminal acts against the nationals of more than
one of the Allied and Associated Powers will be brought before military
tribunals composed of members of the military tribunals of the Powers
concerned.
In every case
the accused will be entitled to name his own counsel.
Article 230
The German Government undertakes
to furnish all documents and information of every kind, the production
of which may be considered necessary to ensure the full knowledge
of the incriminating acts, the discovery of offenders and the just
appreciation of responsibility.
A gesture of Political maturity
Partly as a response to German
public outrage, partly as a sign of maturity by the English delegation
at Versailles, a recommendation made by the German delegation was
supported (5). The German delegation settled the problems arising
from the findings of the Commission and I would respectfully submit
here that it said a great deal about the maturity, trust and diplomacy
of those seeking lasting peace that their recommendations were accepted.
The German proposal was that a trial be held in Leipzig's Criminal
Senate of the Imperial Court of Germany and that trials be conducted
under German law. The Peace Conference agreeing to this, legislation
was duly passed (the Reichsgesetzblatt 1920 No. 53 and 1921 No.
51) by the Reichstag granting jurisdiction to the court enabling
them to try the criminals.
Difficulties
There were numerous difficulties
in the preparation of the trials. Firstly, the list of offenders
that were presented to the German government to present was a list
of men impossible to convene. Some had disappeared in the confusion
of War, some had died, whilst some were aided and extradition refused.
Secondly, witnesses, especially on the part of the British, were
from the four-corners of the globe. The Home Office had been admirable
in contacting servicemen and bringing them to London but even then
some were unable to attend the trials in Eastern Germany.
In London depositions were taken at Bow Street Police Court, at
Covent Garden, in front of the Court's Metropolitan Magistrate.
Counsel representing the German state and lawyers representing the
accused (Britain had finally settled on a list of 7 men) attended
at the time of the depositions. Otherwise witness statements transcribed
by the police were sent direct to the trial judge via local constabulary
offices from the lands of the vast Empire. Local judges in France
and Belgium had sat on preliminary hearings.
The third difficulty was that in the rank of person accused. The
analogy follows the principle that if there is a wrongful arrest
it is the police officer who is the subject of the proceedings and
not the official in Whitehall. Similarly the British had indicted
3 German army personnel of the rank of Private, Captain and Sergeant.
Essentially all decisions would be limited given that justice would
demand that no subordinate be disproportionately punished for following
an order from a superior.
Post-War jurisprudence
With regard to the second of
these points - that of the preparation of witness statements - a
note needs to be made with regard to German jurisprudence. In Germany
it was judicial practice to analyse all evidence before the hearing.
In addition it was acceptable for the judge to ask if the accused
had committed any previous offence before giving evidence. Hearsay,
with condition of relevance, was also accepted.
The presiding justice was Dr Schmidt, and all matters translated
by Dr W.E. Peters, a German of Australian birth, educated at Aberdeen
University. The role of the State Attorney was subsumed in favour
of the judge. This is to say that although the State Attorney was
present, acting as a prosecutor for the German state, his questions
would be fed via the judge to the defendant.
The British delegation were permitted to participate as co-prosecutors
as provided by German legislation of December 1919. However, that
delegation gave full control to the German judiciary. If they did
seek to address the court it was through the protocol of informal
questions passed to either the State Attorney during the hearings
or in conference with officials of the Ministry of Justice but at
no stage did the British directly address the court during the trials.
The Trials
To get a flavour of the
trials is to understand German psychology and by that token German
jurisprudential thought. The English indicted 3 German army staff
and 4 further navy officials. By far the worst of the claims were
against those commanding the submarines.
Sergeant Karl Heynan
Evidence in regard to
Sergeant Karl Heynan related to his behaviour at the Frederich der
Grosse coal mine in Herne, Westphalia. Heynan had already been convicted
by court-martial on account of his treatment of British prisoners.
Heynan related that whilst under his charge, British prisoners had
refused to work in the mines on site. Heynan stated that he was
obliged to use force to secure obedience of men who refused his
instructions on account that by working the mine they would be conducting
a treasonable offence in helping an enemy of Great Britain in its
War efforts. It was related that Heynan kicked and struck men, compelled
them to wear uniforms, and assaulted others whilst they were working.
Certain wretched individuals were targeted for sadistic treatment
whilst either confined in detention cells or in the course of illness.
Heynan was also responsible
for insulting prisoners in calling them 'schweinhund'. In total
the court charged Heynan on 15 counts of brutality unconnected with
the refusal to obey orders and 3 counts of insulting prisoners.
He was sentenced to 10 months in a military prison. |
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Captain
Emil Muller
Captain Emil Muller was
a barrister from Karlsruhe. He was responsible as captain of Flavy
de Martel Camp. This camp had first been settled nearby to the battlefields
by the English. However, when the English had been controlling the
camp, although it had remained in a parlous state, the processing
of prisoners had taken a fortnight.
When Muller took control of the camp he was charged with responsibility
for upwards of 1000 long-term prisoners who were employed in carrying
out hard labour.
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Muller's responsibilities
extended to a general improvement of the conditions of the camp
itself but so bad did they remain that there was a high death toll
from the effects of dysentery.
In his defence
Muller stated that he was not insensible to needs. He sent memos
in regard to conditions and set up a working party to improve general
conditions. However, evidence was given that he kicked, hit and
struck prisoners with either a riding crop when riding his horse
or a stick while riding through the camp, on occasion riding into
the prisoners when camp were presented for morning call.
It was alleged that he had a domineering disregard for others feelings.
He was sentenced to 6 months, despite the State Attorney making
a recommendation of 15 months.
Private Robert Neumann
Private Neumann's offences
related to a chemical plant in Pommerensdorf. He had 50-60 English
soldiers under his command who were charged with filling, weighing
and loading sacks of phosphate. There was refusals to carry out
this work and violence ensued as a result of disobedience. Private
Neumann used the butt of his rifle on certain prisoners and this
lead directly to the hospitalisation of the severely injured. He
was also charged with insulting prisoners.
He was sentenced to 2 months imprisonment.
Commentary
The key to an understanding
of the Leipzig War trials is that they were German War Trials conducted
by German judges with a German mentality. As a result of this certain
matters were given weight that would not have warranted comment
in an English court.
Outstanding matters related to the way in which the court dealt
with insults and disobedience.
Disobedience was taken far more seriously than in English courts.
Mullins wrote of the treatment of this factor: "The British
are law-abiding by nature, but the Germans are, even now, slaves
of a bureaucratic hierarchy. We cannot adequately weigh the German
judgments unless we realise these differences in national temperament"
(6). To give some indication of this a sign in a railway carriage
in Germany at the time of the Leipzig trials read: "in case
of dispute as to whether the window shall be open or closed, the
guard will decide".
Therefore despite the veracity of English claims that assisting
a German command would amount to treason against their own War effort,
the disobedience within itself went some way to mitigate sentence.
The opinion of the court was guided by the principle laid down in
German military law that subjected subordinates to punishment if
the order they gave resulted directly in a criminal offence being
committed. This may have arisen as a result of the subordinate knowingly
acting beyond the terms of the order he was charged with giving,
or knew the act of the order involved a crime.
The other matter involved insults. To an English court terms found
to be serious personal insults, and wounding to national feeling
seemed (and do seem) puerile and unimportant, (and, within the context
of War crimes, incomprehensible considerations to the English witnesses)
but meant a good deal in Germany. This is why terms used such as
schweinhund ('pig dog') and kurle ('fellow') warranted charges within
themselves, exacerbating sentence.
Present day relevance
The Leipzig war trials
were remarkable for particular reasons in relation to the conduct
of the victors of the Great War. Following the German suggestion
of jurisdiction, the Allied Powers demonstrated their belief that
the German judiciary would uphold justice following an examination
of the evidence put before them.
This belief is founded not only on Wilson's terms as quoted above,
but also within the context of Lloyd George's belief that the salvation
of the greater good of Europe was reliant on a German state that
could be seen to be functional in the eyes of the citizens of that
republic. This gave considerable support to the notion that national
stability following conflict was possible, that its legal system
remained efficacious and credible, although, ultimately events of
1923 in Munich would conspire to eliminate this suggestion.
This notion of an efficacious legal system of a conquered state
is a notion quite alien in modern global politics. It would be unthinkable
for a military power to hand back the keys to the kingdom to the
judiciary of a defeated state for fear that their ideologies would
result in sham sentencing or acquittal without due reason. But the
understanding that a legal system maintains validity invests the
decision of the Allied Powers of 1919 with considerable maturity
since that decision recognises the legal system of the defeated
nation. A conquering force that chooses to indefinitely detain and
interrogate war 'criminals' without the light of judicial scrutiny
and public knowledge does so by debasing not only the legal order
of the state it has conquered but so too other legal systems that
could bring justice to bear. This cements a vision emptied of trust
in the justice that characterises every legal system.
Lloyd George was accused publicly of kowtowing to a nationalist
fervour seeking to bring blooded revenge through legal punishment,
but privately he argued for the importance of an international empathy.
This belief consolidated international understanding, offered force
back to the 'enemy' and created a legacy of which present legislators
find impossible to avail themselves.
Bertrand Russell closed his History of Western Philosophy thus:
"In the welter of conflicting fanaticisms, one of the few unifying
forces is scientific truthfulness, by which I mean the habit of
basing our beliefs upon observations and inferences as impersonal,
and as much divested of local and temperamental bias, as is possible
for human beings. To have insisted upon the introduction of this
virtue into philosophy, and to have invested a powerful method by
which it can be rendered fruitful, are the chief merits of the philosophical
school … The habit of careful veracity acquired in the practice
of this philosophical method can be extended to the whole sphere
of human activity, producing, wherever it exists, a lessening of
fanaticism with an increasing capacity of sympathy and mutual understanding.
In abandoning a part of its dogmatic pretensions, philosophy does
not cease to suggest and inspire a way of life"(7) .
Foot Notes
(1) Ho
Chi Minh, who had travelled to Paris from London (and had paid for
his stay as a kitchen hand) had tried without success to bring attention
(to any American delegate at Versailles) to the yearnings for independence
of his own Viet Namese people, at that time colonised by the French.
(2) Wilson would very much have been minded of the Confederate defeat
of 1865 and the subsequent Northern control of land and industry
that had lead to an economic and political retardation of that state.
(3) Arthur S. Link, ed, The Papers of Woodrow Wilson, vol 56, Princeton,
Princeton University Press, 1987, p 531.
(4) Violations of the Laws and Customs of War, Reports of Majority
and Dissenting Reports of American and Japanese Members of the Commission
of Responsibilities, Conference of Paris 1919, Oxford, Clarendon
Press, 1919, p 64.
(5) Historians have noted that Lloyd George considered imperative
the need to uphold German public opinion of their political and
social institutions in a Communist climate.
(6) The Leipzig Trials London, H.F. & G. Witherby, 36 High Holborn,
W.C. 1921
(7) The History of Western Philosophy, B. Russell, Routledge, London,
2001, p. 789
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