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,
Administration of occupied territory. Recruitment of volunteers by the occupant. Introduction of compulsory military service by the occupant. Interference of head of the Administration of occupied territory in the proceedings of occupation courts. The Status of Alsace during the occupation. Jurisdiction of French Military Tribunals. The Legality of the French Ordinance of 28th August, 1944. The Plea of Superior Orders.
The chief accused, Wagner, was Gauleiter and head of the civil government of Alsace, when the province was under German occupation. The others were high administrative, Nazi Party and judicial officers. The accusations brought against them arose mainly out of the systematic recruitment of French citizens from Alsace to serve against France, abuse of legal process resulting in judicial murder, the killing of Allied prisoners of war and the mass expulsion and deportation from Alsace of Jews and other French nationals. Pleas to the jurisdiction of the Tribunal and against the retroactive application of the French Ordinance of 28th August, 1944, Concerning the Suppression of War Crimes, were unsuccessfully entered. All the accused, except one, were found guilty, and were sentenced to death.
Wagner, Röhn, Schuppel, Gädeke and Gruner appealed to the Cour de Cassation (Court of Appeal) on various grounds. Gruner was successful in a challenge to the jurisdiction of the Military Tribunal but the pleas of the other appellants failed.
1. THE COURT
Judges : Simoneau, chef de Bataillon, of the 23rd Infantry Regiment, former member of a resistance group ; Hardiviller, Captain of the General Staff at Strasbourg, former member of the F.F.I. ; Grunder, Lieutenant, of the P.O.W. depot, No. 103, former member of the F.F.I. ; Bucher, N.C.O. (Adjudant-chef) of the 23rd Infantry Regiment, former member of the F.F.I.
The Public Prosecutor was Colonel Daubisse of the Military Judicial Service.
The Greffier (Clerk of the Court), was Captain Baile.
The following were defendants in the trial :
Hermann Gustav Philipp Röhn, ex-deputy Gauleiter of Alsace.
Walter Martin Gädeke, former Chief of the Personnel Section of the Civil Administration in Alsace.
Hugo Grüner, ex-Kreisleiter of Thann.
Ludwig Luger, Public Prosecutor at the Special Court at Strasbourg.
Ludwig Semar, former first Deputy Prosecutor at the Special Court at Strasbourg.
Richard Huber, former President of the Special Court at Strasbourg.
The Indictment (Acte dAccusation), drawn up by the Public Prosecutor (Commissaire du Gouvernement) set out the charges against each of the accused.
Wagner, Röihn and Schuppel were charged with having incited Frenchmen to bear arms against France.
Wagner, Röhn, Schuppel amd Gädeke were charged with having carried out recruitment for the benefit of a foreign power at war with France. Wagner was charged with having made attempts against individual liberty.
Hugo Grüner was charged with having committed premeditated murder. Wagner, Röhn, Schuppel, Gädeke, Luger, Semar and Huber were charged with having been accomplices in premeditated murder.
The Indictment analysed in great detail the positions which tbe accused had held, the powers they had exercised, and the nature of the alleged offences.
Wagner, who had been Gauleiter and Reichsstatlhalter of Baden, was appointed Gauleiter and Chief of the Civil Administration of Alsace in the
summer, 1940, and was ordered by Hitler to carry out the Germanisation and Nazification of the Province. He claimed to have received Hitlers (oral) orders for his activity in Alsace on the occasion of an interview at Hitlers headquarters near Grendenstadt on 20th June, 1940, i.e., two days before the signing of the France-German Armistice. According to Wagner, Hitler had declared that as a result of the victories of the German armies, the Treaty of Versailles was null and void, the " territorial problem of Alsace had ceased to exist " and the province had again become part of the Reich.
The Indictment summed up the position held by Wagner in his double capacity as head of the Nazi Party and of the Executive by saying that he, Wagner, wielded the same powers in respect of Alsace as Hitler did in respect of the Reich.
The entire administrative personnel, including the ordinary police and the Gestapo, were under his direct orders. Though several departments, such as finance, the postal services, transport, war economy, the Four Years Plan and national education, were controlled by the central authorities in Berlin, and though Wagner claimed that other departments would, on occasion, also receive direct orders from the Berlin Ministries, it was Wagner, the Prosecution pointed out, who had taken all major decisions which resulted in the de facto incorporation of Alsace into the German Reich, and who had ordered the measures affecting the life and liberty of the population of Alsace.
Thus he was held responsible for the systematic Germanisation of Alsace, for the introduction of Nazi law, the administrative and economic incorporation of the province into the Reich, for the introduction of compulsory labour and military service, for the deportations and the confiscation practice, for the setting-up of concentration camps and the infamous practices in which they indulged.
Wagner had arrogated to himself the power of final decision in the administration of justice, notably in the trials held by the Special Court, which had been established at Strasbourg by his initiative. The Indictment pointed out that no decision could be taken by that tribunal without Wagners approval and that the hearings were adjourned whenever Wagner happened to be absent from Strasbourg.
It was his normal routine to examine the Indictment before the trial was held, and to communicate to the Prosecutor of the Special Court his orders concerning the penalty which the latter was to demand. Wagner issued these instructions in writing, under the seal of his Civil Cabinet, and the Prosecutor communicated them to the President of the Court. The instructions remained with the Prosecutors dossier and were not filed with the records of the case.
Wagners official powers included the privilege of mercy, but it was alleged that he consistently rejected every recommendation for mercy.
Röhn held the function of Deputy Gauleiter of Alsace. He claimed that this was merely a Party, not an-executive office and that he had no influence on the administration and government of Alsace. Even as a Party official.
he claimed to have acted throughout by Wagners orders, passing on the latters instructions and directives by circulars to the lower levels of the Party organisation, without in any way altering them ; he had merely been " Wagners postman."
Against this, the Indictment described Röhn as Wagners confidant and ascribed to him considerable powers in the administration of Alsace. The Indictment referred to the account of Röhns functions and activities given by Wagner, who described Röhn as the virtual Party leader both in Alsace and Baden, and maintained that he had issued in his own name orders and instructions, which were neither submitted to, nor countersigned by the Gauleiter. Besides, Wagner stated, Röhn had addressed such orders and instructions not only to the Kreisleiters, but also to the heads of the 22 administrative departments.
The Indictment further referred to a circular issued by Röhn in June, 1944, in which he said : " It is essential that the Party should be informed of all measures that are being prepared with a view to suppressing disorders and to fighting parachutists, so that it (the Party) can give the necessary support to the Police."
Schuppel, whose rank as civil servant was that of " Chief of Section," was in charge of the Department of the Interior of the Civil Administration of Alsace. His Party function was that of Gaustabsamtsleiter (head of the Chief of Staff for the Gau).
Schuppels activities covered a wide field. He maintained the liaison between the Alsatian administrative and Party authorities on the one hand, and Party Headquarters at Munich and the central authorities on the other. He was under Wagners and Röhns orders, but the Indictment alleged that he held powers of decision in many departments, ranging from the organisation of rabbit-breeding in Alsace to the confiscation of Church property, from the census and " total mobilisation " of the Alsatian population for war work to the persecution of French nationals suspected by the Germans, and the deportation of resisters and their families. Besides, it was alleged, special tasks had been repeatedly allotted to him, in the execution of which he also held full powers of decision.
Gädeke had been Chief of the Personnel Department of the Civil Administration and head of Wagners " Civil Cabinet." It appears that he held no responsible Party function, but was Wagners right-hand man in the latters capacity as Governor of Alsace. It was Gädeke who handed on to the various administrative department Wagners orders and instructions, which were sometimes oral, sometimes in writing ; in the latter case, Gädeke would sign them, adding to his signature the note " by Wagners orders." Gädeke attended most meetings and conferences held under Wagners chairmanship and was present at the Governors interviews with the Prosecutor of the Special Court. It was not alleged, however, that he attended Wagners conferences with Gestapo officials and with the Minister of the Interior of Baden. According to the Indictment, Gädeke was fully informed of Wagners consultations which eventually led to the
setting-up of the Special Court at Strasbourg ; he knew of Wagners interference with the procedure of that Court and abetted him in it. He took an active part in the preparation of military conscription in Alsace and in the drafting of the Order introducing conscription.
Grüner, Kreisleiter of Thann and Lörrach, was not a member of any of the policy-making bodies in occupied Alsace ; he was charged with having personally murdered four Allied airmen who had made forced landings in Alsatian territory in October, 1944.
He was Public Prosecutor at the Special Court in Strasbourg and accused of complicity in the judicial murders committed by that Court. In his capacity as Prosecutor he kept Wagner informed of all proceedings which he proposed in his réquisitions (formal motion concerning sentence to be awarded).
Semar, " First Deputy Prosecutor " of the Special Court, was charged with complicity in murder. Proceedings against this accused were, however, separated from those against the five others, because, having fled to the American zone of occupation, where he was subsequently arrested, he was transferred to the military prison at Strasbourg at a time when the information (preliminary enquiry) in the case was already closed.
Huber had been President of the Special Court at Strasbourg and, as such, had pronounced the objectionable death sentences. Through the Prosecutor, Luger, he was informed of Wagners orders concerning the trials and submitted to these orders. Huber was tried in contumacia (in his absence).
(a) The Recruitment qf Volunteers
During the early years of the German occupation attempts were made to induce Alsatians to volunteer for the German Army. A large-scale propaganda campaign was launched for this purpose and young Alsatians were invited to join the Wehrmacht and the Waffen SS. Volunteers were promised considerable advantages and privileges, and special efforts were made to obtain the voluntary service with the German Armed Forces of French reserve officers.
Wagner was held responsible by the Prosecution for the organisation and direction of all measures intended to gain volunteers. In one of his circular letters addressed to the lower Party organisations Röhn spoke of the " propaganda campaign for volunteers, which has been ordered by the Gauleiter." The Indictment, quoted, inter alia, passages from an appeal for volunteers signed by a group of Alsatian traitors, which expressly referred to Wagner as having inspired the campaign.
Röhn was alleged to have been the author of a number of instructions addressed to Party offices, concerning the recruitment of volunteers. In the above-mentioned circular he spoke of the necessity " of stepping-up the propaganda campaign, which must be given even more effective support than hitherto by the Party and its formations." An example must be set, he said, by young Alsatians employed on salaried jobs in the Party, and he summed up the instruction in the words : " I enjoin upon you to avail yourselves of every opportunity to emphasize the historic importance of the participation of German Alsace in the struggle for liberation and against Bolshevism, in which the great German Reich is engaged." It was Röhn who directed the Kreisleiters by circular to arrange personal interviews with French volunteers.
Schuppel was accused of having taken part in these activities.
(b) Military Conscription
The appeals for volunteers proved a failure. On Wagners own account, only about 2,300 persons responded, and it was alleged that even this negligible contingent included a number of German nationals resident in Alsace.
As a preliminary step towards the introduction of compulsory military service, labour service was introduced in 1941, and military conscription followed in 1942.
The Indictment pointed out that the Germans had given repeated assurances that they had no intention of enlisting Alsatians for the German army.
Early in 1942, a number of Alsatians who had fled to Switzerland were obliged to return home, and in an agreement concluded on that occasion between the German Reich and Switzerland, Germany gave the undertaking that the young people would not be called up in the course of the war.
Military conscription was introduced in Alsace by Wagners Ordinance of 25th August, 1942, which had the following wording :
Section 3 of the Ordinance analogously defined the status of persons liable to, but not actually on, active military service.
The cited Ordinance was promulgated simultaneously with an Ordinance concerning the acquisition of German nationality by Alsatians. This second ordinance merely gave effect in Alsace to the Decree of the Reich Minister of the Interior of 23rd August, 1942, concerning the acquisition of German nationality by Alsatians, Lorrainers and Luxemburgers, which had been issued under a provision of the Order of the Council of Ministers for the Defence of the Reich, of 20th January, 1942, enabling the Minister.
of the Interior to grant collective naturalisation to certain groups of aliens. The Decree of the Reich Minister of the Interior of 23rd August, 1942, given effect to in Alsace by Wagners Ordinance of 25th August, 1942, provided, inter alia, that " Alsatians, Lorrainers, and Luxemburgers of German race who have been called up or will be called up for service with the Wehrmacht or with the Waffen SS., or who have proved themselves as reliable Germans and are recognised as such " could be granted naturalization. The acquisition of German nationality would take effect as from the day of joining the Wehrmacht or the Waffen SS. (or from the recognition as a reliable German).
The Ordinance introducing compulsory military service was supplemented by the following carrying-out orders :
The Indictment gave the following summary, based mainly on Wagners and Gädekes accounts, of the events which preceded the introduction of compulsory military service in Alsace.
At an unspecified date in 1942, Gädeke was ordered by Wagner to consult the responsible officials of the administrative section of the Civil Administration and of the Police, as well as representatives of the " Territorial (Wehrmacht) Command," on the advisability of conscripting Alsatians for the German army. The replies were all in the negative, even in the case of the military authorities, though the latter would obviously have welcomed an increase of available man-power. According to Gädeke all persons consulted had expressed doubts as to the legality of the proposed measure, in view of the " unsettled status of Alsace."
In spite of this, Wagner contacted Bürckel, Gauleiter of Lorraine, and Simon, Gauleiter of Luxembourg, suggesting to them a joint démarche in the matter. Hitler, having been informed by the three Party officials of their intentions, convened a conference at Vinnitza in the Ukraine, which was attended, in addition to Hitler and the three Gauleiters, by Keitel, Ribbentrop, Himmler and Bormann. It was Wagner who, after having made a detailed report on the situation in Alsace, proposed the introduction of compulsory military service in the province. The other Gauleiters endorsed the proposal. Hitler then gave orders for conscription to be introduced in the three territories, leaving it to the Chiefs of the respective Civil Administrations to settle all matters of detail. As usual, Hitlers order
was oral. Keitel had strongly recommended the measure during the debate.
The Indictment emphasised the fact that Wagner had been the motive power in preparing and introducing compulsory military service and in support of this allegation referred to a speech made by Wagner at Strasbourg a few months after the introduction of the measure, in which he declared that, seeing that the majority of Alsatians were not aware of their duties towards their new fatherland, one man had to act on behalf of all and that that man could only be he, Wagner, himself. " I therefore solicited the Führers permission," he said, " to introduce compulsory military service in Alsace, and I have now been given that permission."
After his return from Vinnitza, Wagner, through Gädeke, ordered the Ordinance introducing conscription to be drafted by the administrative section of the Civil Government. With the Ordinance, orders concerning repressive measures to be taken in the case of disobedience were drafted by Gädeke and further transmitted to all Party organisations by a circular issued by Röhn. These instructions provided that every Alsatian liable to military service who failed to report to the Medical Boards or otherwise to comply with his duties under the Ordinance was to be arrested and immediately deported to the Reich. Any attempt at rioting was to be suppressed with the utmost ruthlessness by the police, who were to make use of their weapons on the slightest provocation.
It was alleged that conscription was enforced with the utmost brutality ; numerous deserters and persons who had disobeyed call-up orders were shot, and their families dispossessed and deported to Germany.
Röhn was charged with having circulated the above instructions received from the administrative section, and of having himself drafted and circulated instructions to the Kreisleiters concerning the recruitment of A.R.P. personnel the call-up of the 1908-1913 classes, and the call-up of French reserve officers.
Schuppel was likewise held responsible for having circulated Wagners orders and instructions concerning compulsory military service. Besides he had issued circulars concerning the deportations of the families of deserters, etc., in which he criticized the delays in the deportation procedure. He was also the author of a circular concerning the employment of Alsatian girls with German military units.
Gädeke was not indicated on the charge of participation in the voluntary recruitment of French nationals ; he was, however, accused of having participated in compulsory recruitment. His part in the events appears from the above account.
These charges were based on three types of facts : (a) Judicial murder, (b) the shooting of captured allied airmen, (c) the killing of persons detained in concentration camps and prisons.
(a) Judicial Murders
The Case of Théodore Witz
This young Alsatian had been involved in proceedings in the Special Court at Strasbourg. The offence for which he was tried was the illegal.
possession of a gun, though this was in fact a very old model. Shortly before the trial his Counsel, Maltre Merckel, discussed the case with the Prosecutor, who told him that he did not consider Witz as a dangerous criminal, but rather as an excitable youth, and that in his motion concerning the penalty to be inflicted (réquisition) he had not proposed the death penalty, but confinement (réclusion) for a term of four to five years. When, according to the established practice, the file was submitted to Wagner, however, the latter is alleged to have dictated to Gädeke the following remark : " Yes, to be executed. Urgent," which Gädeke took down in his own hand.
Witz was actually sentenced to death by the Special Court (with Huber as the Presiding Judge), and the sentence was executed. The recommendation for mercy, which was supported by the German Prosecution, was rejected by Wagner.
The " Ballersdorf Case "
In the night of 13th February, 1943, a group of Alsatians, attempting to pass over into Switzerland, had been intercepted by frontier guards, and in the ensuing clash one guard and three of the fugitives were killed.
In the afternoon of 16th February, 1943, the trial was held of 14 survivors of the group, before the Special Court at Strasbourg. The following facts were alleged by the Prosecution in support of the contention that the most elementary principles and rules even of the German law of procedure were disregarded in the " Ballersdorf trial."
Thus, the Indictment referred to a note written in Hubers own hand to the effect that he, the President of the Court, did not receive the Indictment against the 14 men until 12.30 p.m. on the day of the trial. Two hours later, the accused were allowed to see the Indictment and to communicate with their counsel, who had all been appointed ex officio. This, the Prosecution pointed out, was in flagrant violation of the German law in that the accused had not been notified of their right to demand a supplementary enquiry, to name witnesses and to choose their own counsel. Moreover, two of the accused, Brungard and Müller, who were under age, had not been examined by a psychiatrist before the trial.
A medical expert was, however, heard at the trial itself on the responsibility of these two accused. This expert declared Brungard fully responsible, but considered Müller mentally deficient and proposed that the latter should be taken to a mental institution for further examination. Upon this motion, the Court passed a decision under Art. 81 of the German Code of Criminal Procedure for the separation of the trial against Müller and ordered his removal to a mental hospital.
Before this incident, evidence had been produced of the fact that the frontier guard had been killed by one of the three men who had themselves met with their death in the encounter, and that the accused Gentzbittel had not been present when the clash occurred.
Immediately after the decision for the separation of the proceedings against Müller was passed, the hearing was adjourned. The President of the Court, Huber, the Public Prosecutor, Luger, and the Gestapo and S.D. officials left the Court building and were absent " for a considerable time." It was hinted that during this interval they were received by Wagner.
The hearing was resumed for the final speeches only. In summing up for the Prosecution, the Prosecutor is alleged to have admitted that there was no evidence of the guard having been killed by any of the accused. In spite of this admission, he demanded sentence of death for all of them, and the 13 death sentences were pronounced.
The trial, which had begun late in the afternoon and had been adjourned for some time, was closed at 7.0 p.m.
The 13 condemned men, as well as Müller, were packed on a Gestapo lorry and taken to the Struthof camp. On the following morning they were killed in the most brutal manner by an S.S. detachment in a sand quarry near the camp.
About the fate of Müller, whose case had been separated from that of the other accused, the following facts have come to light : several weeks after the trial, the Prosecutor General of the Court of Appeal at Karlsruhe enquired about the state of the proceedings against Müller. In his reply, Luger reported that Müller had been taken to a concentration camp, where " he had meanwhile died." It appears, however, that he was killed together with the other 13 men ; for, on the morning of the executions, Wagner had rejected an appeal for mercy which had been made on their behalf, and in the list of names contained in his decision the name of Müller was included, while that of Brungard had been omitted. A " corrected " list was sent to Luger by Gädeke, when, weeks after the execution, the mistake was pointed out to him. The question whether the inclusion of Müllers name in the list was, in the Prosecutors words, a deliberate " piece of machiavellianism," or a genuine error, was left open in the Indictment.
Throughout the Preliminary Enquiry, Wagner denied having had any knowledge of the irregularities of procedure, of the adjournment of the hearing and, in particular, having received the members of the Court during the interval and given them any instructions concerning the sentence. Lugers correspondence with the Prosecutor.General, however, made it clear that the Gestapo had already received Wagners orders for the shooting of the 14 men even before Luger was received by Wagner and before the trial was opened. This account was borne out by Gädekes depositions ; according to him, Wagners original intention had been to have the men shot without any trial, and he only accepted the idea of a trial in the Special Court after a long discussion with a German official and on condition that the trial would be held within 24 hours.
(b) The murder of four Allied airmen
On 7th October, 1944, four unknown British airmen made a forced landing at Rheinweiller in Alsace. They were arrested by German pioneers and taken to the town hall. The gendarmerie station at Schlingen was informed of the incident and a detachment of gendarmes led by the maître gendarme Reiner went to Rheinweiller to take charge of the prisoners. On their arrival, they found the captured men outside the town hall, surrounded by a crowd which was said to have been " curious rather than hostile " and were faced with the fact that Grüner, Kreisleiter of Thann and Lorrach, had taken control of the situation. Reiners plan was to take the prisoners to the gendarmerie barracks and to arrange for them to be taken over by the military authorities. Grüner, however, prevented him from doing so. The
account given in the Indictment of the events that followed, was based mainly on depositions made by Grüner himself in the course of the Preliminary Enquiry.
Grüner had told the gendarmes that he was under orders from Wagner to shoot every Allied airman that was captured. He had then ordered the prisoners to be marched off one by one each escorted by a German, and the groups to keep a distance of 50 m. from one another. He had then followed the procession in his car, had taken each prisoner separately to the banks of the Rhine and had shot them with his own mitraillette, which he declared to have always carried with him. The bodies of the murdered men were thrown into the river. Grüner withdrew part of his admission during his interrogation saying that the actual shots had been fired by another person ; but even then he admitted that he had given the order for execution. The Indictment maintained that the second version given by Grüner was untrue.
Grüner reported the incident to Schuppel, Wagner not being at his office on that particular day. On the following day he attempted to induce the maître gendarme to make a false report to the " Landrat," i.e. to say that the four prisoners, while under escort, had been attacked and " carried off " by men hidden by the roadside.
During the Preliminary Enquiry, Grüner, Wagner, Röhn and Schuppel had mutually incriminated one another. Grüner maintained that the execution of " terror flyers " had been discussed at numerous meetings which were under Wagners chairmanship, held early in 1944 and at which Röhn had always, Schuppel sometimes, been present, and that Wagner had expressly ordered the Kreisleiters to shoot captured airmen themselves, whenever they had an opportunity of doing so. According to Röhn and Schuppel, Wagners instructions to the Kreisleiters were to hand captured airmen over " to the vengeance of the population," or, in Schuppels version, to incite the mob to lynch them. Wagner claimed that these or similar orders had emanated from Goebbels and Himmler and had been communicated to the Kreisleiters not by him, but by Röhn. Among the witnesses for the Prosecution heard in the Preliminary Enquiry, was the former mayor of Mulhouse, who had heard Wagner " explain " the murders of prisoners as reprisal action taken by the population, which was in a state of frenzy as a result of allied air attacks.
(c) Murders committed in prisons and concentration camps
Several hundred members of the resistance movement (Réseau alliance), accused of having assisted prisoners of war, deserters, etc., to escape, had been interned in the Schirmeck concentration camp and a number of prisons. After the invasion of the Continent by the Allies, 102 of the 104 detainees at at the Schirmeck camp, 87 men and 15 women, were transferred to the extermination camp Strutthof, where they were shot during the night of 1st September, 1944.
Towards the end of November, 1944, 63 inmates of prisons were shot by a certain Gehrum, who made a tour of the prisons for the purpose of exterminating Alsatian patriots. A further contingent was executed after trial in the Special Court at Karlsruhe.
As the crimes committed at the Strutthof camp were to be dealt with in a special trial, the Indictment referred only briefly to the daily executions by
hanging or shooting, which took place for years at that camp, and to the gas-chamber " experiments " that were undertaken there by a certain Professor Hirt. Specific mention was made of 80 women and some 50 men who were killed in the Strutthof gas chambers in August, 1943.
The Prosecution alleged that Wagner, who had ordered the setting-up of the Schirmeck camp, who had inspected the installations at the Strutthof and who was on intimate terms with the said Professor Hirt, must have been aware of the criminal activities carried on by persons who were under his direct orders. Wagner denied any such knowledge.