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February 27, 2014

The law under which Franz Suchomel was convicted of a “war crime” committed at Treblinka

Filed under: Germany, Holocaust, World War II — Tags: , , — furtherglory @ 12:50 pm

A couple of days ago, I blogged about Franz Suchomlel at https://furtherglory.wordpress.com/2014/02/25/proof-of-the-treblinka-gas-chambers-found-in-the-trial-testimony-of-franz-suchomel-a-junior-ss-guard-at-the-camp/

Today, I am going to expand upon the ex-post-facto law under which Suchomel was convicted and sentenced to six years in prison by a German District Court in Düsseldorf in 1965.

Ex-post-facto means “after the fact.” The law, under which Suchomel and many others were convicted, was not in existence during the time that Franz Suchomel allegedly committed a war crime.

The photo below shows Friedrich Weitzel (#40), a low level SS man who was a supply clerk at Dachau.  He was convicted under the same ex-post-facto law as Franz Suchomel, whose job at Treblinka was about as important as the work done by Weitzel at Dachau.

Friedrich Weitzel is sentenced to prison after his conviction, based on the  new law of "common design.

Friedrich Weitzel is sentenced to prison after his conviction by the American Military Tribunal, under the new law of “common design.”

This quote, regarding the trial of Franz Suchomel, is from Wikipedia:

Twenty years after the end of [World War II], in the framework of first official investigations into war crimes at the Treblinka extermination camp, German authorities collected evidence of Suchomel’s participation in the Holocaust. He was arrested on 11 July 1963.[5] The Treblinka trials took place from 12 October 1964 until 3 September 1965 against ten defendants before the 3rd District Court of Düsseldorf. The charges consisted of the murder of at least 700,000 mainly Jewish people in the gas chambers, as well as deadly assault, shootings, and hangings of individual prisoners. Suchomel was convicted of accessory to murder and sentenced to six years in jail.[4] Suchomel was released from prison on 20 December 1967.[1]

The law, under which Suchomel was convicted, was called “common design” or “common plan.”

According to Robert E. Conot, who wrote a book entitled Justice at Nuremberg, the idea of a law called “common design” was originated by Lt. Col. Murray C. Bernays, a Lithuanian Jew who had emigrated with his family to America in 1900 at the age of six.

Henry Morgenthau, Jr., a Jew who was the Secretary of the Treasury and one of President Franklin Roosevelt’s top advisers, had proposed that the German war criminals should be charged and then executed without a trial. But Bernays said, “Not to try these beasts would be to miss the educational and therapeutic opportunity of our generation. They must be tried not alone for their specific aims, but for the bestiality from which these crimes sprang.”

According to Robert E. Conot’s book, the idea of bringing the German war criminals to justice was first voiced by President Franklin D. Roosevelt on October 7, 1942, when he declared: “It is our intention that just and sure punishment shall be meted out to the ringleaders responsible for the organized murder of thousands of innocent persons in the commission of atrocities which have violated every tenet of the Christian faith.”

Roosevelt was referring to atrocities allegedly committed in the concentration camps, beginning with Dachau in 1933. Most of the war crimes, that were prosecuted in 1945 at the Nuremberg IMT, and at the American Military Tribunal at Dachau, had not yet been committed.

The British also conducted trials, based on ex-post-facto laws.

The Declaration of St. James, on January 13, 1942, announced British plans for war crimes trials even before the British BBC first broadcast the news of the gassing of the Jews in June 1942.

On December 17, 1942, British Foreign Secretary Anthony Eden told the House of Commons: “The German authorities are now carrying into effect Hitler’s oft repeated intention to exterminate the Jewish people of Europe.”

On October 26, 1943, the United Nations War Crimes Commission, composed of 15 Allied nations, met in London to discuss the trials of the German war criminals which were already being planned. That same year, Roosevelt, Churchill and Stalin issued a joint statement, called the Moscow Declaration, in which they agreed to bring the German war criminals to justice.

Even before the start of the International Military Tribunal at Nuremberg and the American Military Tribunal at Dachau, the first trial of German war criminals in the U.S. zone of Germany was held between October 8 and October 15, 1945 when staff members of Hadamar, a clinic near Limberg, Germany, were put on trial.

The following quote is from the web site of the United States Holocaust Memorial Museum:

The 1945 Hadamar Trial (October 8-15, 1945) was the first mass atrocity trial in the U.S. zone of Germany following World War II.

On August 8, 1945, the Allies signed the London Charter which gave each of the four great powers (Great Britain, France, the Soviet Union and the USA) jurisdiction over the camp personnel in the concentration camps located in their respective zones of occupation. The London Charter was also the basis for the International Military Tribunal to try the major German war criminals at Nuremberg.

Even before the war was over, the first Allied war crimes trial had taken place in Poland when the camp personnel of the Majdanek concentration camp were tried by the Soviet Union.  The defendants in this trial were charged with the murder of 1.5 million prisoners at Majdanek.  Now the number of deaths at Majdanek has been reduced to 78,000, including 59,000 Jews.

The British, who had liberated Bergen-Belsen after Reichsführer-SS Heinrich Himmler voluntarily turned the camp over to them on April 15, 1945, held the first post-war military tribunal for concentration camp personnel in September 1945 at Lüneberg, Germany.

Immediately following the liberation of Majdanek on July 23, 1944, the former concentration camp, for political prisoners and Jews, was turned into a camp for captured German soldiers and a few of the former guards and administrative personnel, who were then quickly tried and convicted as war criminals.  America followed this same plan. After the typhus epidemic in the Dachau concentration camp was brought under control in June 1945, the former camp was turned into a prison for German war criminals who were awaiting trial by the American Military Tribunal.

The war crimes office at Dachau

The war crimes office at Dachau

The German defendants at the American Military Tribunal were not allowed access to the records, which were confiscated by the Americans as evidence in the Dachau trials.

Altogether, there were 5 proceedings against groups of concentration camp staff members at the American Military Tribunal at Dachau. In the first four of those cases, 177 staff members of Dachau, Buchenwald, Mauthausen and Flossenbürg were charged, and all of the accused, without exception, were convicted by a panel of American military officers.

The 100% conviction rate, at the American Military Tribunal, was due to the fact that it was the concentration camp system that was on trial; there was literally no defense for the accused because it could not be denied that the concentration camp system was inherently evil and that everyone in a position of authority in any of the camps was part of that system.

The man who is standing is a former inmate of Dachau who is pointing out xxx, who was the supply clerk for the camp

The man, who is standing, is a former inmate of Dachau who is pointing out Friedrich Weitzel (#40), who was the supply clerk for the Dachau concentration camp

Friedrich Weitzel, who is shown in the photo above, was convicted of participating in the “common design” at the Dachau concentration camp because he was the “supply clerk” for the camp.  There was no defense against the “common design” ex-post-facto law

In 1945, there was no German law, nor any international law, that covered any atrocities, that might have been committed in the camps, nor the genocide of the Jews. New laws had been made after these crimes had been allegedly committed.

Col. Robert Jackson, the chief prosecutor of the Nuremberg IMT, said in his opening address: “Hence I am not disturbed by the lack of precedent for the inquiry we propose to conduct.”

Under the new concept of “common design,” organizations, as well as individuals, could be charged with war crimes and membership in an organization was enough to convict an individual of a war crime, whether or not that person committed any acts himself.

At the American Military Tribunal proceedings, the “common design” theory meant that individuals were guilty of crimes committed by others on the staff of a concentration camp even if they didn’t serve at the same time. It didn’t matter whether or not the crimes allegedly committed by others in a particular concentration camp had ever been proved in a court of law or by a military tribunal; staff members of that camp were presumed to be guilty of these crimes, and they had no defense.

Crimes against Humanity was another new concept which did not exist before the Nuremberg International Military Tribunal began. This new law, which was one of the four categories of crimes described by Allied Control Council Law No. 10, was enacted after the end of World War II. It covered brutalities, cruelties, tortures, atrocities and other inhumane acts, including the murder of six million Jews in the Nazi camps. Some of the top-level war criminals at the Nuremberg IMT were charged with Crimes against Humanity, but this charge was not used in the proceedings against the concentration camp personnel who were tried by the American Military Tribunal at Dachau.

It was not until 1948 that the newly-created United Nations announced a law against genocide. With no existing laws in place, the Allies had created new international laws in order to convict and punish those who were presumed to be guilty.

During the trials conducted by the Nuremberg IMT and the American Military Tribunal, the prosecution had only to prove that the accused had participated in a common plan by virtue of his position on the staff of a concentration camp, whether or not he had personally committed any atrocities. The accused in these trials were not charged with committing any specific crime, but rather with aiding and abetting the commission of crimes in the concentration camp system which was designated by the Allies to be a criminal enterprise.

The basis for the “common plan” theory of guilt was Article II, paragraph 2 of Law Order No. 10 which stated as follows:

2. Any person without regard to nationality or the capacity in which he acted, is deemed to have committed a crime as defined in paragraph 1 of this Article, if he was (a) a principal or (b) was an accessory to the commission of any such crime or ordered or abetted the same or (c) took a consenting part therein or (d) was connected with plans or enterprises involving its commission or (e) was a member of any organization or group connected with the commission of any such crime or (f) with reference to paragraph 1 (a), if he held a high political, civil or military (including General Staff) position in Germany or in one of its Allies, co-belligerents or satellites or held high position in the financial, industrial or economic life of any such country.

November 21, 2011

German war criminals convicted by the American Military Tribunal at Dachau

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 had 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 accusations 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.   

In the photograph below, prosecution witness Michael Pellis identifies SS Hauptscharfürher Franz Böttger in the courtroom at Dachau during the American Military Tribunal proceedings in the case of US vs. Martin Gottfried Weiss, et al. The man wearing a card with the number 34 is Walter Adolf Langleist.

Franz Böttger is identified by Michael Pellis in Dachau courtroom of American Military Tribunal

Franz Böttger was born in 1888 and was 57 years old at the time of his trial. Between May 1941 and May 1945, he had served as a Rapportführer (Roll call leader) in the Dachau camp. One of his duties was to escort condemned prisoners to the crematorium where they were shot or hanged.

At the Dachau trial, Böttger was charged with kicking the chair out from under a Russian Communist Commissar when he was hanged. He was also charged with shooting a Russian POW who collapsed on an evacuation death march out of the Dachau camp on April 27, 1945.

The following quote is from the book entitled Dachau Liberated The Official Report by the U.S. Seventh Army, edited by Michael W. Perry:

Bottger, Franz – SS Hauptsharfuhrer

Rapportfuhrer in the camp, subject is an outstanding example of inhuman cruelty and brutality. He participated in the killing of many political prisoners as well as the killing of many prisoners of war. On 27 April 1945, he left Dachau with an evacuation transport. Over 1200 people were killed on the way. Subject was recognized and apprehended by informants working for this detachment about 30 kilometers distance from Dachau.

Although Böttger had been accused of killing many prisoners by the Americans who wrote the Official Report, he was only charged with killing two people during his trial by the American Military Tribunal.

Another Dachau staff member who was put on trial by the American Military Tribunal was Franz Trenkle, who was one of the executioners at Dachau. (Trenkle wore card number 4 around his neck during the trial.) Under interrogation by Lt. Paul Guth before the trial began, Trenkle had confessed to shooting prisoners that had been convicted of sabotage and looting and had been brought to Dachau for execution.

Trenkle’s defense was that he was obeying superior orders. The order had been given by der Führer, Adolf Hitler, and passed down to Ernst Kaltenbrunner, the head of the SD, who then passed the order down to SS Lt. Gen. Richard Glücks who gave the order to Gauleiter Paul Giessler who ordered the shooting. Trenkle claimed that he could only obey commands and was powerless to stop the executions.

The defense of obeying superior orders was not valid in the cases tried by the American Military Tribunal.  Franz Trenkle was convicted and hanged on May 28, 1946; he had extended his life by a few years when he obeyed superior orders.

Emil Mahl is identified by Rudolf Wolf in Dachau courtroom

The photo above shows Emil Mahl, wearing number 33, as he is identified in the courtroom at Dachau by Rudolf Wolf, a former prisoner in the Dachau camp. Seated on the far right is Albin Gretsch, number 31.

Emil Mahl was specifically charged with assisting in the execution of a young Russian Prisoner of War who was one of the 90 Communist Commissars hanged at Dachau. Adolf Hitler had ordered that all captured Communist Commissars should be brought to the nearest concentration camp and executed. Mahl had committed a war crime when he put the rope around the neck of the Russian POW before his execution.

Emil Erwin Mahl was defended by Hans Karl von Posern, a German attorney, who had been a prisoner at Mauthausen. His defense was that Mahl was only obeying orders: “Befehl ist Befehl – an order is an order.”

Pointing to Emil Mahl behind him, von Posern said, “Here is defendant Mahl, who was told he had to take part of an execution. He gets led up to the execution place and receives the order to place the rope on the neck of a man who shall get hanged. If he had not obeyed the order, his own execution would have taken place.”

Eugen Seybold, a crematorium worker at Dachau, points a finger at SS doctor Dr. Fritz Hintermayer

The photograph above shows Dr. Fritz Hintermayer, on the left, wearing a card with the number 10 around his neck. Eugen Seybold, a former prisoner in the camp, points to him as he identifies Dr. Hintermayer as one of the SS doctors at Dachau. Dr. Hintermayer was one of the accused who claimed that he was coerced into signing a confession by Lt. Guth.

Eugen Seybold was one of the Kapos at Dachau; he was one of the workers in the crematorium whose job it was to put the dead bodies into the cremation ovens. Eugen Seybold could potentially have been among the accused himself if he had not agreed to testify for the prosecution as a paid witness, as one of the defense attorneys pointed out during the trial.

Fritz Becher is shown in the courtroom at Dachau

The photo above shows Fritz Becher in the courtroom at Dachau, just after he rose from his chair to take the witness stand.  Becher was accused of beating a priest to death at Dachau.  American prosecutor Lt. Col. William Denson conceded that Becher might have been falsely accused by one of the witnesses: “It may be pointed out by defense counsel that some testified falsely, that on a certain date they saw Becher beat a priest so brutally that he died, and Becher states he was not at that place at that particular time. And the witness may indeed be in error in that respect.”

In the end, it didn’t matter that the prosecution had not proved that Becher had beaten a priest to death. He was nevertheless sentenced to death by hanging; Becher was executed on May 29, 1946.

The prosecution called more than 100 witnesses to the stand in the first Dachau trail; at the end of his presentation, Lt. Col. Denson called several of the Jewish interrogators to the stand. All of them denied using any force or coercion to obtain confessions from the accused. Supposedly, the accused had voluntarily signed confessions admitting to the most ignominious atrocities, such as making human shrunken heads or fashioning handbags out of human skin, with the knowledge that they would surely receive a death sentence for such crimes.