
Friedrich Weitzel, wearing #40 on his back, is sentenced to death by the American Military Tribunal
Most people know about the Nuremberg International Military Tribunal where the most important German war criminals were put on trial by the Allies in November 1945, but less well known are the trials conducted by the American Military Tribunal where German war criminals were prosecuted in a courtroom at the former Dachau concentration camp. The photo above shows Friedrich Weitzel, a member of the staff at the Dachau camp, as he hears his death sentence pronounced by an American Military judge.

Friedrich Weitzel is identified in court by Helmuth Breiding
What heinous crimes had Friedrich Weitzel committed against the innocent prisoners in the Dachau concentration camp? Weitzel had not personally committed any crimes at all; he was prosecuted under the ex-post-facto law called “common design” which made it a crime for anyone to have any connection whatsoever to a Nazi concentration camp. (Concentration camps had been declared to be a criminal enterprise by the Allies after World War II ended.)
Weitzel was the supply clerk for the Dachau camp. The following quote is from the book entitled “Witness to Barbarism,” written by a member of the prosecution staff at Dachau:
[The American prosecutor] Denson has drawn the indictment alleging violations of the Rules of Land Warfare – namely, the killings, beatings, torture, starvation, and other abuses from January 1, 1942, to April 29, 1945, when the Americans liberated Dachau. [Denson] says the worst offense was the starvation of prisoners through embezzlement. The administration of each camp received a check by mail from the Himmler headquarters in Berlin, the amount depending on the number of prisoners. But they bought as little food as possible for prisoners, pocketing the remainder of the funds.
If Weitzel had personally embezzled the funds given to him to buy food for the Dachau prisoners, he would have been prosecuted by the Nazis themelves. Karl Otto Koch, the Commandant of Buchenwald, was accused by the SS of embezzling money from funds given to him for the Buchenwald camp; Koch was executed by the SS after a trial conducted by SS judge Konrad Morgen. Amon Goeth, the Commandant of the Plaszow camp in the Schindler’s List story, was awaiting trial by the SS when World War II ended; he had been accused by Morgen of stealing from the warehouses at the Plaszow camp.
The Dachau camp was also investigated by Morgen, but there were no accusation of embezzlement of funds for food at Dachau. None of this mattered to the Americans who prosecuted staff members of Dachau. Under the “common design” ex-post-facto law, every German was guilty of something, regardless of what he had personally done.
In the same photograph above, which was taken on November 22, 1945, the man on the far left, wearing #29 on his chest, is Sylvester Filleböck. One prosecution witness testified that Filleböck was present in September 1944 when 90 Communist Commissars in the Soviet Army were executed at Dachau on the orders of Adolf Hitler. Filleböck denied being present at the execution and six other witnesses corroborated his story, but nevertheless, he was sentenced to death by hanging. He was guilty of a violation of the Laws and Usages of War because he was allegedly present during the executions and had not acted to intervene.
All German soldiers in both the SS and the Wehrmacht were required to swear an oath to Adolf Hitler. By not intervening in the executions ordered by Hitler, Filleböck had prolonged his own life by a few years, since he would undoubtedly have been shot on the spot if he had tried to stop an order from being carried out. The prosecution contended that he would have merely been transferred to another job.
During closing arguments, defense attorney Lt. Col. Douglas Bates gave the following argument with regard to the “superior orders” defense:
There has been a lot of impressive law read by the chief counsel, and it is good law – Miller, Wharton. The sad thing is that little of it is applicable law. Perhaps we have not been diligent enough in seeking applicable law. Some think the prosecution has found applicable law in the Rules of Land Warfare on the doctrine of superior orders. We have no intention of arguing that executions by the German Reich were due process. Nevertheless, we contend that executions were the result of law of the then recognized regime in Germany and that members of the firing squad were simple soldiers acting in the same capacity as in any military organization in the world.
Most of the German war criminals were defended by American military lawyers. In the closing argument presented by the defense in the trial of Weitzel, on December 12, 1945, Lt. Col. Douglas Bates argued against the concept of “common design.”
Bates said the following, with regard to Friedrich Wetzel, as quoted from the trial transcript:
And a new definition of murder has been introduced along with common design. This new principle of law says “I am given food and told to feed these people. The food is inadequate. I feed them with it, and they die of starvation. I am guilty of murder.” Germany was fighting a war she had lost six months before. All internal business had completely broken down. I presume people like Filleboeck and Wetzel should have reenacted the miracle of Galilee, where five loaves and fishes fed a multitude.”
Another German war criminal who tried to use the “obeying superior orders defense” was Leonard Eichberger; he was a soldier who was ordered to Dachau after he was wounded at the front and had lost a leg. His defense lawyer, Capt. Niles, argued before the court that Eichberger had not had a choice when he was assigned to Dachau and that he should not be held responsible for the legality of the orders that he had to carry out in the camp. (more…)