AMERICAS FIRST MILITARY TRIBUNAL-EXECUTION OF GENERAL ANTON DOSTLER
BRIEF SUMMARY OF DOSTLER
Anton Dostler, born on 13-06-1884 in Munich, entered the Army Service on 23-07-1910, at the age of 25, in the 6th Bayerischen Infanterieregiment. He ends World War I as a 1st Ordinance Officer in the same Regiment and is allowed in the new Reichswehr. At the beginning of World War II he is assigned to Operation Chief in the General Staff of the 7th Army and is promoted to Major General. Dostler is twice in the infamous Führer Reserve and served with several Corpses. His last command, from 01-12-1944, is of the LXXIII Army Corps and he is in American captivity on 08-05-1945. After the war Dostler was tried in the first trial after the war and found guilty of war crimes and sentenced to death by firing squad. On March 22/23, 1944.
MURDER ON COMMAND
Anton Dostler was a German general of infantry in World War II. Dostler had fifteen prisoners U.S. soldiers executed during the Second World War. He was sentenced after the war by a U.S. court to death and shot shortly afterwards. On the 8 May 1945 he was captured by the Americans and brought to trial before a U.S. military court in Caserta for the shooting of the 15-member American saboteurs. The charge against him, was that he had issued an illegal instruction relied on the so-called Commando Order of 18 Oktober 1942. This personal order from Hitler stated the immediate execution of captured Allied commandos, whether uniformed or not. Dostler saw himself only as a bearer of this command to Colonel Almers. The court did not follow his argument, despite the more than dubious but legal interpertation and sentenced him on 12 October 1945 to death.
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| Gravestone of Aton Dostler |
Late at night, on 22 March 1944, the 'Ginny Mission' stole out of Bastia, Corsica, on PT boats, Lieutenants, Vincent Russo and Paul Traficante commanded 13 enlisted men on this OSS operation. Close to the shore near La Spezia, the commandos set of in rubber rafts, their purpose, to blow a rail-road tunnel on the main supply line to the German front, 400 miles south od Cassino and Anzio.
The Ginny II mission objective, vaulted tunnel arcades that open to the sea, Framura
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| tunnel arcades that open to the sea, Framura. |
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| La Spezia |
In the morning light of March 24, an Italian fisherman noticed the rubber boats pulled up along the shore, and mentioned them to authorities at nearby Bonassola. Soon a search of the area began, involving both Italian and German personnel. Eventually, as the search area widened, searchers encountered an Italian girl who had seen strangers with rifles on a road near her home. Quickly the area was sealed off, the farm building surrounded, and the American team forced to surrender. They were questioned briefly by Italian Fascist authorities in Bonassola, then turned over to the German military, and transferred to the German headquarters of the 135th Fortress Brigade in La Spezia. There interrogation began in earnest. Details of the interrogation methods are lacking, but eventually at least one of the soldiers divulged the details of the mission. Ominously, the information that it was a commando raid was relayed up the German hierarchy.
The mission was not accomplished. The men did not return. Nothing was heard of them until after VE-Day, when OSS found 15 bodies in a seaside grave. With hands bound behind them, the Americans had been put to death by a German firing squad, in violation of the Geneva Convention forbidding execution of uniformed enemy soldiers taken prisoners.[Other sources claim, although they did wear US uniforms, but had them turned outside in when they were apprehended by a fascist Italian Patrol, sic]
Five months later, Anton Dostler commanding General of the German LXXV Corps, was tried by an American Military Commission in the Palace of Justice at Rome as the officer chiefly responsible for the executions. Dostler pleaded not guilty, but was sentenced to die. Anton Dostler was the first German General brought to trial after the war, and the first executed. This case became a precedent for the Nuremberg war crime trials of German generals, officials and Nazi leaders beginning in November, 1945. The precedent thus contributed to the codification of Principle IV of the Nuremberg Principles, which rejects 'Superior Orders', and a similar principle found in sections of The Universal Declaration of Human Rights.
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| Memorial at Punta Bianca, Ameglia. |
THE COURT
The Trial was conducted by a Military Commission appointed by command of General McNarney, consisting of the following: Major-General
L. C. Jaynes (President), Brigadier-General T. K. Brown, Colonel H. Shaler, Colonel James Notestein, Colonel F. T. Hammond, Jr., Major F.
W. Roche (Judge Advocate), 1st Lt. W. T. Andress (Assistant Judge Advocate), ColonelC. O. Wolfe (Defence Counsel), and Major C. K. Emery (Assistant Defence Counsel).
In the conduct of its proceedings, the Commission was ordered to follow the provisions of circular 114 of Headquarters, Mediterranean Theatre of Operations, 23rd September, 1945, entitled " Regulations for the Trial of War Crimes."
From October 8th to the 12th, a parade of witnesses, mostly German officers, told the commission of the circumstances under which the OSS men were condemned. The execution without trial, was ordered on the basis of the Führerbefehl ( command of Adolf Hitler) which demanded the 'extermination...without mercy...on general principals' of all commandos found behind German lines.
Dostler spent a whole day on the witness stand testifying through a GI interpreter in an effort to save his life. Sweating and nervous, the chunky, florid defendant admitted he had ordered the Americans shot, but said he had no choice. 'An order was given by me that the men were to be shot', the accused conceded on the stand. 'Than I mediated further and decided to talk with Col. Almers, commander of the 135th Fortress Brigade, were the prisoners were held'. Dostler said he ordered Almers to hold the execution while he consulted next higher headquarters, that of the army group commanded by General Gustav von Zangen. When von Zangen's headquarters demanded the firing squad for the Americans, Dostler ordered the prisoners shot by 7 A.M. the following morning, he said. Von Zangen, however, testified for the prosecution that he did not give that order. Almers and three Naval Officers, who were interrogating the prisoners, appealed by telephone and telegram to Dostler and Marshall Kesselring to spare the OSS party or, at least, postpone the execution. Kesselring never replied, the appeal to Dostler failed and the 15 Americans were shot on March 26. [ There are conflicting reports, that no weapons were used, I quote from another source:
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| Memorial at
the site of the mass grave/ La Ferrara area, Bocca di Magra. |
The trial was carefully watched by virtually the entire world press, since the issue, whether all Nazi war crimes may be attributed to Hitler alone and whether 'obeying orders from above' is a valid defence for illegal acts of war, was tested here for the first time.
Alexander zu Dohna-Schlobitten, who refused to sign the execution order, was dismissed from Wehrmacht for insubordination, Zu Dohna was a German aristocrat died on 24-02-1997, at the very old age of 97. [He was in no other way prosecuted or demoted in rank and thus received his pension,sic]
TRIAL OF GENERAL ANTON DOSTLER, COMMANDER OF THE 75TH GERMAN ARMY CORPS
Anton Dostler was accused of having ordered the shooting of fifteen American prisoners of war in violation of the Regulations attached to the Hague Convention Number IV of 1907, and of long-established laws and customs of war. A plea was made to the jurisdiction of the Commission by his Counsel, on the grounds, first, that the accused was entitled to the benefits of the Geneva Prisoners of War Convention of 1929 in the conduct of his trial, and, secondly, that the Commission had not been legally established. These arguments, and the plea of superior orders later put forward on Dostler’s behalf, were rejected, and he was condemned to death.
Anton Dostler was charged with violations of the laws of war in that, as commander of the 75th German Army Corps, he, on or about 24th
March, 1944, in the vicinity of La Spezia, Italy, ordered to be shot summarily a group of United States Army personnel consisting of two officers and 13 enlisted men, who had then recently been captured by forces under General Dostler, which order was carried into execution on or about 26th March, 1944, resulting in the death of the said 15 members of the United States Army.
THE PLEA TO THE JURISDICTION OF THE MILITARY COMMISSION
At the beginning of the trial the Defence presented a plea to the jurisdiction of the Military Commission to try the accused. Article 63 of the Prisoners of War Convention of 1929, it was stated, provided that a sentence shall only be pronounced on a prisoner of war by the same tribunals and in accordance with the same procedure as in the case of persons belonging to the armed forces of the detaining Power. This provision was also set out in para. 136 of the American Basic Field Manual, Rules of Land Warfare. By virtue of the provisions of the Constitution of the United States, the Geneva Convention had become part of the United States Municipal Law (Footnote: Counsel could also have pointed out that Congressional Legislation had made the Convention part of United States Law), and Article 16 of the American Articles of War (an Act of Congress) provided that officers of the United States Army shall be triable only by Genera1 and Special Courts-Martial, and in no case shall an officer, when it can be avoided, be tried by officers inferior to him in rank.
From this the Defence argued that the proper tribunal to try the accused would have been a Court Martial. (Trial before Courts Martial affords to the accused a higher degree of safeguards than trial by a Military Commission.)
The Prosecution replied that the provisions of the Geneva Convention with regard to the trial of prisoners of war, which the Defence had put forward, pertained to offences committed by a prisoner of war in captivity, and did not pertain to offences committed against the Law of Nations prior to his becoming a prisoner of war. If the accused, being a prisoner of war, had struck a guard, Counsel for the Defence would be absolutely correct ; the accused would have had to be tried by a Court Martial, for that would have been an offence against the American Articles of War, but in the present case he was being tried for an offence, not against the Articles of War, but against the Laws of War, for which a Military Commission might be, and had been for more than a hundred years, the proper method of trial. Counsel for the Prosecution quoted from Winthrop’s Military Law and Precedents, p. 835, enumerating the classes of persons who in United States law might become subject to the jurisdiction of Military Commissions, and expressly naming individuals of the enemy’s army who had been guilty of illegitimate warfare or other offences against the laws of war. The Prosecutor also referred to paragraph 346 (c) of the Basic Field Manual, Rules of Lund Warfare, according to which, in the event of clearly established violation of the laws of war, the injured party may legally resort to the punishment of captured individual offenders. He further quoted two further arguments were then put forward by the Defence. The first was to the effect that the Commission had been set up by order of an American General, whereas the forces operating in that theatre were Allied forces of several different nationalities under a British Commanding General, Field Marshal Alexander. Counsel claimed that the accused was " entitled to be tried at least by a Court or a Commission appointed by the Commanding General of the theatre of operations in which the offence allegedly was committed," since he was " charged with being a war criminal rather than committing an offence against or which is peculiar only to the forces of the United States."
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| Fortress were Americans were held |
The Prosecution claimed in reply that by long-standing practice, custom and even laws of war the Supreme Commander in the field had the authority to appoint a Military Commission. The belligerent injured by the offence was the United States, and the Supreme Commander for all American Forces in that theatre was General McNarney, who had appointed the Commission and had referred the case to it.
Under the provisions of Rules of Land Warfare, it was the injured belligerent who could bring the captured before a Military Commission, and Counsel therefore doubted whether Field Marshal Alexander would have had authority to appoint the Commission and refer the case to it.
Finally, Article 38 was purely permissive in character, not mandatory, and there was nothing in the Articles of War which took from General McNarney the power to appoint the Commission and to make rules for its procedure.
The Commission overruled the pleas of the Defence.
THE CASE FOR THE PROSECUTION
The Prosecution claimed, by virtue of the witnesses and evidence produced, to be able to establish the following facts :-
On the night of 22nd March, 1944, two officers and 13 men of a special reconnaissance battalion disembarked from some United States Navy boats and landed on the Italian coast about 100 kilometres north of La Spezia. The front at the time was at Cassino with a further front at the Anzio beach head. The place of disembarkation was therefore 250 miles behind the then established front. The 15 members of the United States Army were on a bona fide military mission, which was to demolish the railroad tunnel on the mainline between La Spezia and Genoa. On the morning of 24th March, 1944, the entire group was captured by a party consisting of Italian Fascist soldiers and a group of members of the German army. They were brought to La Spezia where they were confined near the headquarters of the 135th Fortress Brigade. The 135th Fortress Brigade was, at that time, commanded by a German Colonel, Almers (who was not before the Military Commission). His next higher headquarters was that of the 75th German Army Corps then commanded by the accused, Anton Dostler. The next higher headquarters was that of the Army Group von Zangen, commanded by the General of the Infantry von Zangen, who was called as a witness in the case. The next higher command was that of the Heeresgruppe C or Heeresgruppe South West, which was at that time under Field Marshal Kesselring.
The captured American soldiers were interrogated in La Spezia by two German Naval Intelligence Officers. In the course of the investigation one of the officers of the American party revealed the story of the mission. On 24th March a report was made by the 135th Fortress Brigade to the 75th Army Corps about the capture. On the next morning (25th March, 1944) a telegram was received at the headquarters of the 135th Fortress Brigade signed by the accused Dostler, saying in substance " the captured Americans will be shot immediately."
On receiving this cable, the commanding officer of the 135th Fortress Brigade and the Naval Officers interrogating the prisoners got into touch with the 75th Army Corps headquarters in order to bring about a stay of the execution. Late on the afternoon of the 25th March, Colonel Almers (then commanding the brigade) received another telegram from 75th Army Corps which said in substance that by 7.0 o’clock the next morning (26th March) he would have reported compliance with the order of execution.
Colonel Almers then gave orders for the conduct of the execution, for the digging of a grave, etc. During the night from Saturday 25th to Sunday, 26th March, two attempts were made by officers of the 135th Fortress Brigade and by the Naval Officers to bring about a change in the decision by telephoning to the accused Dostler. All these attempts having been unsuccessful, the 15 Americans were executed on the 26th March, early in the morning.
They were neither tried, nor given any hearing.
The argument of the Prosecution was that since the deceased had been soldiers of the United States Army, dressed as such and engaged on a genuine military mission, they were entitled to be treated as prisoners of war. Their execution without trial, therefore, was contrary to the Hague Convention.
THE EVIDENCE
Witnesses for the Prosecution included a Captain in the United States Army who had directed the operation against the tunnel. He stated that the fifteen soldiers had been bona fide members of the United States Forces ; he also bore witness as to the nature of the mission on which they were sent, and as to the clothing and equipment which they wore. Witnesses for the Prosecution included also an Italian employee of the Todt Organisation and two German Naval Intelligence Officers who gave further evidence regarding the deceased’s, clothing. One of the last two identified a document before the Commission as representing in substance the Führerbefehl to which reference was made by the Defence. Three ex-members of the Wehrmacht gave evidence of attempts made to induce Dostler to change the order regarding the execution, and on the circumstances of the execution. General Zangen appeared in the witness box, and denied having ordered the execution of the prisoners.
Two depositions and the notes of a preliminary interrogation of General Dostler were also allowed as evidence. The first deposition was made by a German lieutenant in hospital, who bore witness to the contents of the telegram containing Dostler’s orders regarding the immediate execution of the prisoners and to the efforts which were made to avert the latter. The second deposition was made by a Captain in the United States Army who had been present at the exhumation of the bodies of the soldiers. The Defence recalled General Zangen, who bore witness to the accused’s merits as a soldier, and called a second Wehrmacht General, von Saenger, who described the oath which officers of the German Army had had to take on the accession of Hitler to power. As will be seen, General Dostler himself also appeared as a witness under oath.
Although it was not possible to produce the witnesses primarily needed by the Defence (one of them, the commander of the Brigade, had escaped from captivity and had not been recaptured, while the others could not be traced in the American and British zones), the decisive facts were not controversial, namely that the victims had been members of the American Forces, carrying out a military mission, that the accused had ordered their shooting without trial and that they had been so shot.[This may not quite correct, there is not sufficient evidence aftyer exhumination that all were shot,sic]
THE ARGUMENTS OF THE DEFENCE AND REPLIES MADE BY THE PROSECUTION
That the Deceased were not entitled to the Benefits of the Geneva Convention The Defence claimed that for any person to be accorded the rights of a prisoner of war under the Geneva Convention, it was necessary, under Article 1 thereof, for that person, inter alia, " to have a fixed distinctive emblem recognisable at a distance." The submission of the Defence was that the American soldiers had worn no such distinctive emblem, and that their mission had been undertaken for the purpose of sabotage, to be accomplished by stealth and without engaging the enemy. They were not therefore not entitled to the privileges of lawful belligerents, though it was admitted that they were entitled to a lawful trial even if they were treated as spies. (Footnote: While the Defence made no use of the facts in argument, the United States Captain who directed the operation bore witness that all of the soldiers were possessed of an Italian background, and that most of them could speak some Italian. He stated that the mission had had sabotage as its aim and that the whole company from which the men were drawn had been recruited in the United States with a view to work behind the enemy’s lines. As it might be necessary to live off the land, a knowledge of the language of the country in which they were expected to operate was deemed very helpful.)
The accused relied on the defence of superior orders which was based on two alleged facts :-
(a) The Führerbefehl of 18th October, 1942, the text of which is provided in the Appendix. The Führerbefehl laid down that if members of Allied commando units were encountered by German troops they were to be exterminated either in combat or in pursuit. If they should fall into the hands of the Wehrmacht through different channels they were to be handed over to the Sicherheitsdienst without delay.
The Defence Counsel submitted that pursuit could go on for weeks, and that it was not ordered that the allied troops should necessarily be killed on the spot.
In answer to the argument of the Prosecution that Dostler had exceeded the terms of the Führerbefehl, the Defence pointed out that Dostler had received no punishment for his action, whereas para. 6 of the order stated that all leaders and officers who failed to carry out its instructions would be summoned before the tribunal of war.
(b) Alleged orders received from the Commander of the Army Group, General von Zangen, and from the Commander of the Heeresgruppe South West, Field Marshal Kesselring.
Dostler also claimed that he had revoked his first order to shoot the men and that he had eventually re-issued it on higher order.
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| Dostler tied to the stake prior to execution |
The Defence tried to establish the fact that in 1933 all officers of the German Army had had to take a special oath of obedience to the Führer Adolf Hitler.(Footnote: Actually this happened in 1934, when Hitler " succeeded " Hindenburg as " head of the State.) This fact was confirmed both by General von Zangen and Dostler himself in the witness box. The Prosecution put a question to General von Saenger whether he could cite to the Commission any single case of a general officer in the German Army who was executed for disobedience to an order. Von Saenger replied that he had heard of two cases, one of which he knew ; the second was only a rumour. The witness did not know a case in the German Army in which a general officer was executed for disobedience to the Führerbefehl of 18th October, 1942.
General von Saenger admitted that the Führer gave out orders which in their way interfered with International Law. The officers at the front who had to execute these orders were convinced, however, that in those cases Hitler would make a statement or by some other means inform the enemy governments of his decisions, so that the officers were not responsible for crimes committed while carrying out his orders. He also said that during the war officers could not resign from the German Army.
Dostler himself said that under the oath to Hitler he understood that it was mandatory upon him to obey all orders received from the Führer or under his authority.
Defence Counsel quoted a statement from Oppenheim-Lauterpacht, International Law, 6th edition, volume 2, page 453, to the effect that an act otherwise amounting to a war crime might have been executed in obedience to orders conceived as a measure of reprisals, and that a Court was bound to take into consideration such a circumstance.
The Defence invoked the text of the Führerbefehl which in its first sentence itself refers to the Geneva Convention and represents itself as a reprisal order made in view of the alleged illegal methods of warfare employed by the Allies. Counsel claimed that retaliation was recognised by the Geneva Convention as lawful, that the Führerbefehl stated the basis on which it rested and that the accused therefore had a perfect right to believe that the order, as a reprisal order, was legitimate.
The Defence quoted also paragraph 347 of the United States Basic Field Manual F.M.27-10 (Rules of Land Warfare), which says that individuals of the armed forces will not be punished for war crimes if they are committed under the orders or sanction of their government or commanders.
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| Dostlers body immediately after execution |
In so far as the defence was based on the Führerbefehl, the Prosecution submitted that, apart from an illegal order being no defence, the shooting of the prisoners in the present case had not even been covered by the terms of the Führerbefehl, because the latter ordered that Commandos should be annihilated in combat or in pursuit, but that if they came into the hands of the Wehrmacht, through other channels, they should be handed over without delay to the Sicherheitsdienst. The prosecuting Counsel pointed out that the deceased had not been killed in combat or in pursuit, and had been executed instead of being given up to the Sicherheitsdienst.
As far as the Defence relied on orders received from Army Group headquarters, and headquarters of the Heeresgruppe South West, this defence had not been substantiated. As far as the Army Group command was concerned, it had not been confirmed by the witness, General von Zangen, and as far as a command of the Heeresgruppe South West was in question, it was even rebutted by the statement of a witness that some hours after the execution a cable had been received from the headquarters of Heeresgruppe South West to the effect that the execution of the 15 Americans should not take place.
With regard to the text of the Führerbefehl of 18th October, 1942, which was used in evidence, the Defence Counsel said : " It is a matter of common knowledge that this Führerbefehl was kept extremely secret. As a matter of fact practically no originals of it have ever been found. This does not purport to be an original we have ; it is a copy on which the signature of whoever signed it is illegible. I understand it was secured from the French intelligence and they passed it on, and that one copy is the only one they have been able to find."
During his examination, the accused, on being handed a copy of the text of the Führerbefehl of October, 1942, said that a document which he had received in 1944 through Army Group channels contained substantially everything that was in the 1942 text, but with certain additions. He stated further that " this copy is not the complete Führerbefehl as it was valid in March, 1944. In the order that laid on my desk in March, 1944, it was much more in detail . . . the Führerbefehl which was laying in front of me listed the various categories of operations which may come under the Führerbefehl. In addition there was something said in that Führerbefehl about the interrogation of men belonging to sabotage troops and the shooting of these men after their interrogation. . . . I am not quite clear about the point, whether a new Führerbefehl covering the whole matter came out or whether only a supplement came out and the former Führerbefehl was still in existence. . . . The Führerbefehl has as its subject commando operations and there was a list of what is to be construed as commando operations. I know exactly that a mission to explode something, to blow up something, came under the concept of commando troops."
With regard to the mission of the 15 American soldiers he claimed that, after making consultations with staff officers, " as it appeared without doubt that the operation came under the Führerbefehl an order was given by me and sent out that the men were to be shot."
General von Saenger said that in the Autumn of 1943 he had been acquainted with a Führerbefehl on the same subject which was different in contents from that before the Commission. On the other hand, three witnesses, namely, one of the German Naval Intelligence Officers, an ex-Wehrmacht Adjutant and General von Zangen, could remember no amendments to the Führerbefehl of October, 1942.
THE VERDICT
The Commission found General Dostler guilty.
THE SENTENCE
General Dostler was sentenced to be shot to death by musketry. The sentence was approved and confirmed, and was carried out.General Ridgway was in involved in the trial of the German General Anton Drosler, who was found guilty of a war crime and sentenced to death. On 27-11-1944, the Mediterranean Theatre Commander, Lieutenant General Matthew B. Ridgway, confirmed the sentence. At 8 a.m. on the morning of 01-12-1944, General Dostler was executed, age 54. He is buried on the war cemetery of Pomezia, Italy.
THE GERMAN REPORT
On 22 March 1944 an American sabotage commando landed on the Italian coast 100 kilometres north of the port city of La Spezia. These consisted of two officers and thirteen soldiers of the U.S. Army. None of these men were dressed in uniforms, which would have them recognised as combatants. Their mission was to destroy a railroad tunnel between La Spezia and Genoa. On 24 March 1944 this group was captured and interrogated by Italian and German soldiers and kept under guard. One of the officers revealed the plan of the mission. This information was transmitted to the LXXV Army Corps. General Dostler reported the case to Field Marshal Kesselring and ordered the shooting of the saboteurs. Dostler relayed this command as ordered. The Americans were still being held by Fascist partisans as they were dressed in civilian clothing. After reading to them of their imminent execution, they revealed their troops belonging and their mission. Because as non-uniformed combatants they were not entitled to the treatment under the Geneva Convention, the shooting during war-time was legally legitimate. [This part of the Defence is rather vague and was solely based on the 'Führerbefehl', sic]
General Anton Dostler was after his capture by the Americans, tried by a 'Victors' Military Tribunal and in revenge for his militarily-correct behaviour and sentenced to death. On 1 December 1945 he was executed by a firing squad. The killing was filmed by Americans for propaganda purposes.
General Ridgway was in involved in the trial of the German General Anton Drostler, who was found guilty of a war crime and sentenced to death. On 27-11-1944, the Mediterranean Theatre Commander, Lieutenant General Matthew B. Ridgway, confirmed and signed the sentence. At 8 a.m. on the morning of 01-12-1944, General Dostler was executed, age 54. He is buried on the war cemetery of Pomezia, Italy.
EPELOGUE
> On December 1, 1945, German General Anton Dostler was shot by the American military at Aversa, Italy, for war crimes.
Specifically, General Dostler was condemned for having ordered the summary execution of American saboteurs who had been taken behind enemy lines. Dostler was the first German general tried by an American military commission, and the first put to death for war crimes .And his sentence did not sit well with all.
There had been a group of German saboteurs captured in the United States during the war who had themselves been executed (after becoming the subject of Supreme Court landmark Ex parte Quirin). Here, a mirroring act on the German side brought a death sentence for its (supposed) author. Dostler’s scenario therefore raised interesting questions of war crimes law, jurisdiction … and politics. The essential legal difference between the German saboteurs and the OSS men shot at La Spezia was that the latter were found to have been taken in uniform. If uniformed, they were entitled to prisoner of war status; if not, then a summary execution might have been (however repugnant) permissible. It seems to be generally agreed, and even conceded by Dostler’s defense, that the saboteurs were indeed in uniform, though the notes of the trial are rather vague on the point; there’s an intriguing indication that the defense disputed the notion that the captive saboteurs’ uniform had the necessary “fixed distinctive sign recognizable at a distance.” (Time said that “they wore no insignia, had turned their field jackets inside out.”) In a do-over, Dostler’s defense might have dug very deep into what met the Geneva Convention’s definition of a uniform. For the Germans, however, the saboteurs’ fate was decided by Hitler’s notorious Commando Order, inflicting immediate death on any enemy personnel (uniformed or not) captured behind German lines. Understandably, then, Dostler’s counsel seems to have been much more interested in pursuing the “superior orders” defense, and did so with gusto: in this early landmark trial, it was an as-yet untested strategem even though the Allied Powers had decided as a matter of policy not to protect potential war criminals on that basis. Not only was the Führerbefehl at work in general, but Dostler had kicked this specific decision upstairs to the office of Gen. Albert Kesselring, which had insisted upon the executions (to the point of directly phoning the fortress which held the Americans to ask why they weren’t dead yet). Dostler defense attorney Col. Claudius Wolfe appeared to strike a chord with the tribunal’s career military officers in his closing summation, impressing upon them the danger to military order or to their own persons of establishing a precedent that subordinates can be held accountable for illegal orders from above We won the war this time, but no one knows who will win the next time. We might lose and then you gentlemen might find yourselves sitting where this man is now sitting…If we find this man guilty because of political pressure or because he lost the war and is in our power, we might as well not have won the war. (New York Times, Oct. 12, 1945) But a more immediate precedent was at stake: the many imminent war crimes trials including the Nuremberg proceedings. Many of those would never get off the ground if a “superior orders” plea could work for someone as high-ranking as a general — or if the first war crimes trial out of the gate resulted in an acquittal.
APPENDIX
THE TEXT OF THE FÜHRERBEFEHL AS PRODUCED IN THE TRIAL
The Führerbefehl of 18th October, 1942
1. Recently our adversaries have employed methods of warfare contrary to the provisions of the Geneva Convention. The attitude of the so-called commandos, who are recruited in part among common criminals released from prison, is particularly brutal and underhanded. From captured documents it has been learned that they have orders not only to bind prisoners [this was in first done during a commando raid by the British on the Channel Islands which choked some Germans to death, sic] but to kill them without hesitation should they become an encumbrance or constitute an obstacle to the completion of their mission. Finally, we have captured orders which advocate putting prisoners to death as a matter of principle....[The text of another order by Hitler relating to the treatment of captured saboteurs was produced in evidence at subsequent war crime trials.]
2. For this reason, an addition to the communique of the Wehrmacht of 7th October, 1942, is announced; that, in the future, Germany will resort to the same methods in regard to these groups of British saboteurs and their accomplices---'-that is to say that German troops will exterminate them without mercy wherever they find them.
3. Therefore, I command that: Henceforth all enemy troops encountered by German troops during so-called commando operations, in Europe or in Africa, though they appear to be soldiers in uniform or demolition groups, armed or unarmed, are to be exterminated to the last man, either in combat or in pursuit. It matters not in the least whether they have been landed by ships or planes or dropped by parachute. If such men appear to be about to surrender, no quarter should be given to them on general principle. A detailed report on this point is to be addressed in each case to the OKW [German High Command,sic] for inclusion in the Wehrmacht communique.
4. If members of such commando units, acting as agents, saboteurs, etc., fall into the hands of the Wehrmacht through different channels (for example, through the police in occupied territories), they are to be handed over to the .Sicherheitsdienst [Security Service, sic] without delay. It is formally forbidden to keep them, even temporarily, under military supervision (for example, in POW camps, etc.).
5. These provisions do not apply to enemy soldiers who surrender or are captured in actual combat within the limits of normal combat activities (offensives, large-scale air or seaborne landings). Nor do they apply to
enemy troops captured during naval engagements, nor to aviators who have baled out to save lives, during aerial combat.
6. I will summon before the tribunal of war all leaders and officers who fail to carry out these instructions-either by failure to inform their men or by their disobedience of this order in action.
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