(1921) leipzeig trials

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Wmi AN INTRODUCTION BYSIR ERNEST POLLOCK.KCM.!?


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THE LEIPZIG TRIALS


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THE LEIPZIG TRIALSAN ACCOUNT OF THE WARCRIMINALS' TRIALS AND ASTUDY OFGERMAN MENTALITY

BY

CLAUD MULLINSof Grafs Inn, BarrisUr-at-Law

WITH AN INTRODUCTION BYSIR ERNEST POLLOCK, K.B.E., K.C., M.P.

LONDONH. F. & G. WITHERBY326 HIGH HOLBORN, W.C.

1921


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TO MY BROTHERJOHN OLLIS MULLINS

WHO DIED FOR ENGLAND, IQI5


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INTRODUCTIONDuring the war no demand was more rightly made,or more constantly sustained, than that those whowere guilty of crimes against the Laws of War andHumanity, both on land and sea, should be broughtto justice. The demand was not confined to ourown country. In the words of the notice issued bythe French Government on 5th October, 191 8, " actsso contrary to International Law, and to the veryprinciples of human civihsation, should not gounpunished." And as Monsieur Louis Barthou saidon 3rd November, 191 7, " There must be punish-ment, and it must be swift."When hostilities ceased on nth November, 191 8,this demand became insistent, and the Attorney-General of the day, now the Lord Chancellor(Viscount Birkenhead), set up a strong committee oflawyers to examine the whole matter, as well thelegal position as the charges themselves and theevidence available to support them, and to report tohim upon the steps to be taken to ensure that the" War Criminals," as they then had come to be

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6 INTRODUCTIONtermed, should be brought to justice. At the PeaceConference a commission was set up to report to theconference for the same purpose. At this commis-sion, representatives of all the allied countriesattended, and a report upon the violations of theLaws and Customs of War was duly made, with theresult that Articles 228-230 were inserted in theTreaty of Versailles, which was signed upon 28thJune, 1919.

At one of the earliest sittings of that commissionin Paris, on 7th February, 1919, British delegatespointed out that, unless immediate steps were takento arrest the War Criminals, the labours of the com-mission might prove fruitless. A suggestion wasurged that a condition should be inserted in the nextextension of the Armistice, whereby the enemyshould undertake to hand over for detention and trialthose persons whose names should be communicatedfrom time to time. This suggestion of the Britishdelegates was accepted by most, indeed by almostall, but not quite all^ of the other countries repre-sented on the commission. The matter wasconsidered by the Supreme Council, but unfortun-ately no means were devised whereby, at that stageof the Peace negotiations, it was found possible totake speedy action.

The German representatives signed the Treaty


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INTRODUCTION 7of Peace at Versailles on 28th June, 1919. Owingto the delay caused by the illness of President Wilsonand the working of the American Constitution, theTreaty did not come into force as between GreatBritain and Germany until the loth January, 1920.It was then, and not till then, that the clauses of theTreaty, under which Military Tribunals were to trypersons accused of having committed acts of violationagainst the Laws and Customs of War, could bebrought into operation.

Those who were anxious to secure the trial ofthe War Criminals chafed at this delay. Theyappreciated the difficulties which the passage of timeadded to those already inherent in the matter. Thedelay gave the opportunity for escape to those whomust have been conscious that their names wouldfigure on any list presented under Article 228.The repatriation of the prisoners of war dispersedamong the many Dominions of the Crown the menwho had come from every part of the globe to fightfor the great cause of civilisation; and this, as wellas the demobihsation of the fighting forces, allrendered the task of collecting the evidence andsecuring the attendance of witnesses before anytribunal, tenfold more difficult.

As I said above, the demand was that the WarCriminals should be brought to justice. No doubt


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8 INTRODUCTIONif the war had been continued for the purposeatthe cost of additional Hves and treasureit wouldhave been possible to have insisted that a numberof those against whom allegations were freely madeshould have been surrendered and tried off-hand ata drum-head court-martial. Or, if the surrender ofthe same criminals had been demanded as a con-dition of the extension of the Armistice, and somesort of trial immediately improvised, a number ofthose against whom the charges were made couldhave been summarily convicted and punished.Once, however, the clauses had been inserted in theTreaty, it was essential to adhere to their terms;more especially as those against whom they weredirected were charged with having disregarded notonly the usages of war, but also the conventionslaboriously worked out and assented to by civilisednationswhether at Geneva, or at the Hague.

Immediately after the Treaty came into force, inJanuary, 1920, the list of those demanded by theAllies was prepared, and ultimately submitted to theGermans. That list was a long one, not unnaturallyso, because the tale of barbarities against French-men, Belgians, the British and Italians, was itself alltoo long.

The German Government represented, and theirrepresentations were accepted by the Supreme


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INTRODUCTION 9Council, that if they attempted to arrest many ofthose whose names figured upon the list, it wouldbring the Governmentnone too stableto theground. They made a counter proposition thatthey should have the evidence submitted to them,and try before the Supreme Court of Leipzig thoseagainst whom the charges were made and whom theyundertook to arrest and bring to trial. The Alliestentatively accepted this proposal and presented alist of forty-five cases to be tried by way of experi-ment before the Supreme Court. They made itplain, however, that though they would supply theevidence

theyleft full

responsibilityto the Germans" sans intervenir dans la procedure, les poursuites

et le jugement, de maniere a laisser au Gouverne-ment allemand sa pleine et entiere responsabilite "were the unequivocal terms used in the reply by theAllies. This point is of some importance because ithas been suggested that the AUies were in a positionto direct or interfere with the course of the Court atLeipzig. No self-respecting Court could be askedto allow such interference ; and for foreigners tointervene before a tribunal, with whose practice andprocedure they were not familiar, would have beento court disaster.

The British cases, six in all, were ready first.They were chosen as representative of the charges


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lo INTRODUCTIONbrought against the War Criminals. Three of themwere charges against the commanders of submarines.Three cases related to prison camps. These wereselected because they were free from the complica-tions which occur in some of the other prison campcases. Where a succession of commandants, eachappointed for a short time, follow each other, it isnot easy from the evidence of the witnesses, who hadno reasonable opportunity under the circumstancesof taking note of the date or person in commandwhen their miseries were suffered, to identify theofficer responsible. Heynen, Miiller, and RobertNeumann in the prison camp cases were all con-victed, as well as Dithmar and Boldt, who werearrested by the Germans themselves for complicityin the outrage committed by Lieutenant Patzig infiring on the life-boats of the s.s. LlandoveryCastle.

The proceedings of the Supreme Court atLeipzig have been appraised in this country some-what superficially by those who took note only ofthe sentences. These sentences were, to ourestimate, far too light ; but as the following pagesshow, they must be estimated according to theirvalues in Germany. To the Germans a sentenceof imprisonment upon an officer carries a specialstigma, and imports a blot upon the service to which


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INTRODUCTION iihe belongs. No sentence could be adequate orexpiate the outrages committed ; no time will effacethe memory of their sufferings from those who under-went them. If we had sought vengeance, no systemof trial or punishment would have satisfied our thirstfor it. But as I have said before, the demand wasfor justicefor British justice, under which thedefendant should have an opportunity of stating hiscase, and be condemned only after a fair hearingthe justice that reaches its end " pede poenaclaudo."

Those who were present in Court at Leipzigare able to form a better estimate of tlie effect pro-duced at the trials upon the public who attendedthem. No newspaper report can adequately conveythe sensation which was produced from time to timeby the Court accepting the evidence of the Britishwitnesses as trustworthy, and the President turningshort upon the prisoner for his answer : " Here'sa respectable young man ; did you hit him ? " Theprisoner : " I don't remember." The President :" Then if you don't remember, I don't believe you."Or again, from the President's retort to the counsel,in the Boldt and Dithmar case, who suggested, uponhearing the evidence that Meissner, the best gun-layer, now dead, had been summoned to the deckof the submarine, that it was probably he who had


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12 INTRODUCTIONfired the gun and did the outrage" Don't imaginethat you are going to get rid of this terrible affair bytrying to put the blame upon a dead man ; that won'tdo." Again, to the counsel in the Heynen case, whosuggested in the evidence as to a blow given to oneof the prisoners that there was a discrepancy in theevidence, one of the witnesses having said that hewas hit when on the top of a ladder and the other atthe bottom, the President said shortly that it did notmatter whether he was hit at the top of the ladder orat the bottom of the ladder, " The question is, was hehit? and I believe he was." I watched the Germanmilitary representatives as the President inHeynen's case said in the course of his oral judg-ment : " One cannot help acknowledging that hereit is a case of extremely rough acts of brutality,aggravated by the fact that they were perpetratedagainst defenceless prisoners, against whom oneshould have acted in the most proper manner if thegood reputation of the German Army and therespect of the German nation as a nation of culturewere to be upheld." Their depression indicatedthat they appreciated the disgrace brought upontheir army.

These and similar incidents had their effect onthe Germans who attended the trials in Court andupon the Germans throughout the country.


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INTRODUCTION 13For my own part I was alike disappointed and

surprisedthat longer

sentences were not adminis-tered in some of the cases. With the assistance ofMr Claud MuUins, the writer of this book, andothers, I was able to follow the trials accurately andminutely. I owe much to his intimate acquaintancewith the German language, and his accurate andpains-taking scrutiny of the German code. Thusequipped I can say, as one who was present at mostof the trials of the British cases, that it has beenestablished before the Supreme Court of Germanyequivalent to our House of Lords or Privy Councilthat the charges that were made against theGermans in the course of the war were wellfounded, that the evidence of the British witnesseswho gave evidence at the trials was accepted astrustworthy, and that the convictions secured inGermany itself

few though the cases tried havebeenhave resulted in an admission of guilt. Thetrue object of a conviction and punishment is that itshall be a deterrent against the repetition of similaracts. If the trials had taken place in London, theprobability is that the Germans would have assertedthat the trials were unfair, and built a memorial inBerlin to those who were the subjects of them.Now it can be said before the whole world that ithas been proved in certain representative cases that


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14 INTRODUCTIONthe Germans were guilty of breaches of the Laws ofWar and Humanity,

It is the purpose of this book to give an accuraterecord of these cases. Those who are preparedafter considering the following pages to look forthe permanent results of the trials, and not to formhasty or superficial judgments,

willperhaps sharethe view that so far no small achievement has been

accomplished, and that, even if in a few cases only,justice has been asserted. Probably as the warrecedes this achievement will stand out as moreimportant than at the present time, for, though theterms of imprisonment, measured by whateverstandard, must pass away by lapse of time, theeffect of the convictions will stand for ever.

E. M. P.


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PREFACEThis book has been written in an endeavour toexplain the efforts made after the Great War tore-estabHsh the Law and the principles of Humanity.Appalling acts were committed during the war whichshocked the conscience of the world, and there wasa widespread feeling when the war ended that anattempt should be made to punish individual wrong-doers. Public opinion, both British and amongEngland's Allies, can never be indifferent to the trialsof men who were guilty of atrocities during the GreatWar, and I hope, therefore, that it will be useful toput on permanent record a full description of whatactually took place at Leipzig in 192 1.

But the punishment of individual wrong-doers isonly part, in my opinion only a secondary part, ofthe vindication of Law and Humanity. Germany'swar criminals were part of the system whichproduced and encouraged them, and the condemna-tion of that system is of greater importance tlianthe fate of any individual wrong-doers. In order

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i6 PREFACEto understand that system and to understand theextent and manner of its condemnation it is neces-sary to know Germany well, to know the mentalityof the German people before, during, and afterthe war.

Before the war I lived and travelled in Germanyat various times, and had many opportunities ofgetting to know the German people. As regards thetrials at Leipzig, I was present at all the trials of thecases submitted by the British Government and, ashappily I can speak and understand the Germanlanguage, I was able to follow the proceedingsclosely throughout. At the trials that were held atthe instance of our Allies, no British lawyer waspresent, but while in Leipzig I had opportunities ofmeeting the Belgian and French lawyers who formedthe legal missions from their respective countries andof discussing their cases with them. Later I wasable to discuss these trials with both English pressrepresentatives and German officials who had beenpresent; in addition, I have obtained copies of thejudgments of the Court in these cases, and these areincluded in this book.

The charges have often been made that theTreaty of Versailles showed an absence of idealismon the part of those who framed it and that the PeaceConference of 19 19 concentrated more on revenge


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PREFACE 17for the past than on reconstruction for the future. Ihave never beheved these charges to be well-founded, and certainly the one part of the Treatywith which I have had to deal leads me to believe inthem less than ever. The War Criminals' Trialswere demanded by an angry public rather than bystatesmen or the fighting services. Had the publicopinion of 1919 had its way, the trials might havepresented a grim spectacle of which future genera-tions would be ashamed. But, thanks to thestatesmen and the lawyers, both at the PeaceConference and afterwards, a public yearning forrevenge was converted into a real demonstration ofthe majesty of right and of the power of law.

At the time of the trials, public opinion wasinfluenced mainly by the leniency of the sentenceswhich the Leipzig Court passed upon the men whomit convicted. The results of the trials drew boththe bitter criticism of The Times and other news-papers, and the sarcastic humour of Punch. Thosewho read this book will at least have an opportunityof judging the trials as a whole ; they will be able tosee to what extent individual wrong-doers receivedtheir deserts and to what extent brutality as a systemin waging war was condemned. The Leipzig trialsmay not have fulfilled the expectations of the publicwhich demanded them when the Armistice came, but

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i8 PREFACEthey are of very real importance and value none theless. They have made History.Some of those who read this book may beimpatient at my effort to judge the trials impartially.To them I would say that I have no reason to betender towards Germany or tolerant of the Germanspirit which produced the war; my home and mycareer will ever bear the scars of the war, and forboth I consider that Germany is responsible. Ihave no patience with those who fail to realise thereality of hatred. But at the same time I cannotjoin with those who fail to realise that we must lookto the future rather than to the past. The worldcan only progress by endeavouring to get back toreal peace conditions. Human nature being whatit is, punishment is necessary, and I have neversympathised with those who would eliminatepunishment for offences in making or conductingwar. But punishment has always to be imposedaccording to the principles of justice and with dueregard to the realities of life and to the interests ofposterity.

Sir Ernest Pollock, K.C., M.P., has been goodenough to contribute an introduction to this book.As Solicitor-General he led the British Mission atthe Leipzig trials, and by his firm, but everchivalrous, handling of a most difficult situation he


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PREFACE 19earned both the gratitude of British, and the respectof German, pubhc opinion. His leadership madeone more than ever proud to be British. I desire,however, to emphasise that this book is in no senseofficial. Sir Ernest Pollock is not responsible inany way for opinions that I have expressed. Ihave written this book purely as an independentindividual. I alone am responsible.

My thanks are due to the editor of theFortnightly Review for permission to incorporate inthis book parts of an article which I wrote for hisissue of September, 192 1 ; to Herrn K. vonTippelskirch, and also to Miss V. M. de Gruchy formuch help in preparing this book and passing itthrough the press.

C. M.Goldsmith Building,

Temple, E.G. 4.,November, ig2J.


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CONTENTSCHAP. Introduction by Sir Ernest Pollock,

K.C, M.PPreface . . . . .

I. The Preliminaries . . . .II. The German Court . . . .

III. The British Cases. (Prison Camps)1. sergeant KARL HEYNEN2. CAPTAIN EMIL MULLER3. PRIVATE ROBERT NEUMANN

IV. The British Cases. (Submarines)1. LIEUTENANT-CAPTAIN KARL NEUMANN2. FIRST-LIEUTENANTS LUDWIG DITHMARAND JOHN BOLDT

V. The Belgian and French Cases1. MAX RAMDOHR .2. LIEUT.-GENERAL KARL STENGER AND

MAJOR BENNO CRUSIUS3. FIRSr-LIEUTENANT ADOLPH LAULE4. LIEUT.-GENERAL HANS VON SCHACKAND MAJOR-GENERAL BENNO KRUSKA

VI. CommentsVII. The Results Achieved1. LEGAL results .2. general results

Index21

PAGE

5

152335

516787

99

107135136

151169

173191209210224235


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CHAPTER I: THE PRELIMINARIESThe War Criminals' Trials that were held at

Leipzig between 23rd May and i6th July, 192 1, werevery different from the trials expected by the publicafter the Armistice of nth November, 1918, andduring the General Election which followed shortlyafterwards. Certainly at that time nobody expectedeither that two and a half years would elapse beforethe accused men would be brought to justice or thatthey would be tried before a German Court.

In the years that elapsed between the Armisticeand the trials war passions abated to a considerableextent. We British people especially have alwaysshown an inability to hate for any length of time.When we fight, we fight hard, but in our wars andafterwards we are influenced by the traditions ofsportsmanship for which we are known all the worldover. It comes naturally to us to shake hands aftera fight. After such a war as that of 19 14- 18shaking hands was at first next to impossible, butthe instincts of sportsmen were operating in us nonethe less. Montesquieu wrote of us that " LesAnglais yous font peu de politesses, mais jamaisd'impolitesses." I doubt if the former is really

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24 THE LEIPZIG TRIALStrue, but the latter certainly is, and it applies toour relations with friend and foe alike. In manyindividuals hatred remained predominant long afterthe war, but in the nation at large hatred died downquickly and, even if contempt took its place, therewas a very general feeling that there must bejustice even for those who were recently our bitterestnational enemies.

The question of trying the War Criminals wasone in which our national instincts were bound toshow themselves in marked degree. The Treaty ofVersailles had provided that any German who wasaccused by any of the Allies of having violated thelaws and customs of war should be handed over andtried by the Allies themselves. When these clausesof the Treaty came to be put into operation, it wasrealised that serious difficulties must inevitablypresent themselves if they were carried out to tlieletter. There was also a feeling among some thatthe procedure outlined in the Treaty offended ourinstinctive national craving for fair-play, and thatit should be regarded at best as a last resort. Thisfeeling did not in any way imply a weakening in thenational determination to re-establish the principlesof humanity or a desire that the accused men shouldbe left free, but it was symptomatic of an underlyingfear lest the very human desire for revenge shouldlead us to infringe our highest standards of justice.The actual wording of the clauses in the Treaty


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THE PRELIMINARIES 25of Versailles which dealt with the War Criminals'Trials was as follows :

ARTICLE 228The Gertnan Government recognises the right

of the Allied and Associated Powers to bring beforemilitary tribunals persons accused of having com-mitted acts in violation of the laws and customs ofwar. Stich -persons shall, if found guilty, besentenced to punishments laid down by law. Thisprovision will apply notwithstanding any proceed-ings or prosecution before a tribunal in Germany orin the territory of her allies. The German Govern-ment shall hand over to the Allied and AssociatedPowers, or to such one of them as shall so request,all persons accused of having committed an act inviolation of the laws and customs of war, who arespecified either by name or by the rank, office, oremployment which they held under the Germanauthorities.

ARTICLE 229Persons guilty of criminal acts against the

nationals of one of the Allied and AssociatedPowers will be broiight before the military tribtmalsof that Power. Persons guilty of criminal actsagainst the nationals of more than one of the Alliedand Associated Powers will be brought beforemilitary tribunals composed of members of themilitary tribunals of the Powers concerned. In


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26 THE LEIPZIG TRIALSevery case the accused will be entitled to name hisown cotmsel.

ARTICLE 230The German Government undertakes to furnish

all documents and htformation of every kind, thefroduction of which may be C07tsidered necessary toensure the full knowledge of the incriminating acts,the discovery of offe^iders and the just appreciationof responsibility.

Political conditions in Germany were so un-settled in 1919-20 that it was, in fact, impossiblefor immediate steps to be taken to carry out theseprovisions. When the lawyers were able to settledown to the task, many practical difficultiespresented themselves. The German Governmentfrankly said that it was impracticable for it to arrestall the men whose names were on the liststhoselists included many men who were, and always willbe, national heroes to the German public. Thenthere were difficulties of procedure, due to thewidely differing judicial systems of England andher Allies. So early in 1920 the Allies, at thesuggestion of this country, agreed to accept an offerby Germany to try a selected number of cases beforea German Court. This arrangement was condi-tional, for the Allies retained the right if necessaryto repudiate these German trials and to demand thefull execution of Article 228.


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THE PRELIMINARIES 27Forty-fiye cases were selected, seven of these

being British prosecutions. The German Govern-ment was unable to arrest three of these seven men.Commander Patzig, commander of the submarinewhich sank the hospital ship Llandovery Castle,lived in Dantzig, and by the Treaty of VersaillesDantzig ceased to be a German town. Inquiries weremade in Germany, but Commander Patzig couldnot be found. Lieutenant-Commander Werner,commander of the submarine which sank s.s.Torrmgton, and Sergeant Trienke, who wascharged with Private Neumann with having ill-treated British prisoners of war, similarly could notbe found. Warrants were issued against these menby the German Government, and any propertywhich they held in Germany was sequestrated.After the first four trials had been held the GermanGovernment announced that they had arrestedLieutenants Dithmar and Boldt, junior officers onCommander Patzig's submarine, and requested theBritish Government to supply the evidence neces-sary to charge them with murder.The War Criminals' Trials of 192 1 will never beunderstood unless it is realised that it was decidedthat a War Criminals' trial should be a trial in thefullest sense of the word. When these trials werefirst mooted no doubt an excited public had visionsof drum-head courts-martial which would speedilysentence hundreds of accused Germans, many of


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a8 THE LEIPZIG TRIALSwhom had played very prominent parts against usduring the war. But popular passions are nevercompatible with a careful thinking out of any problemof the day. In 191 8 the public generally expectedwholesale convictions and probably life-long sen-tences. Florence Nightingale once wrote of one ofher friends, " She does not want to hear facts; shewants to be enthusiastic." The British public wasin this mood in 1918, and in 192 1 there were stillmany who were living in the atmosphere of 191 8.Nietzsche wTote the cruel words : " People are mostlysane, but peoples mostly insane." Carlyle once wroterather the opposite, but Nietzsche was nearer to thetruth. We were all unbalanced during the war ; hadwe been otherw^ise we could never have w^on. Butthe atmosphere necessary for waging war is verydifferent from the atmosphere in which alone thescales of justice can be evenly held. In Germanyone of the best-known poems is Schiller's " Song ofthe Bell," and in this Schiller wrote the followinglines :

" Gefahrlich ist's den Leu zu wecken,Verderblich ist des Tigers Zahn ;Jedoch der schrecklichste der Schrecken,Das ist der Mensch in seinem Wahn."^

*" There is danger in awakening the lion; the tiger's toothdoes injury. Yet the greatest of all terrors comes frommankind when it raves."


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THE PRELIMINARIES 29Popular passions must abate if justice is to be

done. To be convinced of a man's guilt becauseone hates him is to set aside the fundamentalprinciple of justice.

Thus, when endeavouring to understand the WarTrials at Leipzig, the essential fact to be realised isthat all the preparations for them and the trialsthemselves were conducted on the assumption thatthe ordinary principles of criminal courts would beobserved. In fact, these trials were different fromordinary criminal trials mainly in that the accusedmen and the principal witnesses for their prosecutionwere of different nationalities. So far as thefundamental principles of criminal procedure wereconcerned, there was no difference between the WarCriminals' trials and any other trials.

This fact had very important consequences. Thecases had to be prepared with just the same amountof care and precision as is given to a criminal trialin the British Courts. They had also to be selectedwith every regard to the laws of evidence. It hadalways to be borne in mind that the accused men,however convinced people might be of their guilt,were innocent until they had been proved guilty byevidence, given in open Court against them, whichwould convince the Court of their guilt.

With the way in which the British evidence wasgiven I will deal later. But I would here emphasisethat the acceptance of these principles severely


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30 THE LEIPZIG TRIALSlimited the authorities in their selection and prepara-tion of the British cases. The immediate result wasthat it was impossible to proceed against many of theworst offenders. It is very difficult at all times toprove crimes which happened three, five or even sixyears ago, but the difficulties are far greater when theaccused men, when they committed the acts com-plained of, were enemies, shut off from all means ofcommunication. At the time of the trials there wasmuch grumbling in England because the Britishcases, unlike the French, did not include Generalsor Admirals. I had no part in the selection of theBritish cases, being overseas at the time, but I amconvinced that the authorities made their selectionwith their eyes mainly fixed on the ordinary laws ofevidence.

No one can read the judgment in the case ofCaptain Miiller, for instance (set out in Chapter III),without feeling that for the appalling conditions ofthe prisoners' camp at Flavy-le-Martel it was theGerman Army Command and not Captain Miillerthat was mainly responsible. The Command insistedthat the prisoners should be kept in that unhealthylocality, close to the firing-line, so that their labourcould be utilised for essential military work. Thiswas illegal and, could a German General have beenproved to have issued this order, he would probablyhave been brought to trial. But it is exceedinglydifficult, if not impossible, for Englishmen to prove


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THE PRELIMINARIES 31the conduct of ex-enemy Generals according to thestandards of proof obtaining in British Courts. TheBritish soldiers and sailors, upon whom the selectingauthorities were dependent for evidence, only cameinto contact with German subordinates. NoEnglishman could speak of what took place at theGerman War Councils, and the actual orders whichwere issued by German Generals did not reach oursoldiers.

Those who read the judgments of the Court inthe French case against Generals von Schack andKruska will understand this difficulty. Frenchmen,ex-prisoners, had spoken of appalling medicalconditions in a prison camp, and one can have littledoubt that the facts to which they spoke from theirown knowledge were true. Yet the Court refusedto convict the Generals. " Several witnesses havespoken of offences," it is stated in the judgment," which were very serious for them, but for whichno Camp Commandant can be held criminallyresponsible. . . . He cannot be everywhere. . . .If these charges are true, the doctors were toblame." There was also an appalling case inwhich British prisoners were transferred to Russiaby way of reprisals for an alleged breach of the lawsof war by England. Conditions of almost incred-ible cruelty existed and no other conclusion ispossible but that these men were deliberately sentto Russia to die. But the case never resulted in a


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32 THE LEIPZIG TRIALStrial, presumably because of the difficulties of proofagainst any individual.It is a principle of British justice that punish-ment can only be awarded for the personal acts ofthe accused, proved in open Court against him.This principle is our constitutional safeguard; if apoliceman arrests me wrongfully, I proceed againsthim and not against the official at Scotland Yard orWhitehall who originally made the mistake. Thesubordinate is condemned for his own acts and byhis condemnation the system, of which he formspart, is condemned also. This principle, with allits limitations, was adopted in the War Criminals'trials.

By proceeding on this principle, it is obvious thatin most cases all chances of sensational punish-ments were abandoned, for a Court, whatever be itsnationality, will always take into consideration thefact that a subordinate is not wholly responsible.This is, to my mind, the main reason why thesentences awarded by the German Supreme Courtwere so lenient. But of this more will be said inChapter VI.To many laymen it may seem wrong that these"juridical niceties

"should have saved senior

officers from condemnation or should have enabledguilty subordinates to escape with lenient punish-ments. But any lawyer will understand the reasonsfor this policy, and I doubt if the general public


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THE PRELIMINARIES 33would really have appreciated a system of " DirectAction " trials, in which the laws of evidence wereignored and which were in fact automatic regis-trations of verdicts. The real object of the WarCriminals' Trials was, it must never be forgotten,primarily the condemnation of a brutal and inhumansystem, not the punishment of individual offenders.This condemnation was amply secured.In the preparation of the British cases no effortwas spared to collect evidence on every relevantpoint. As an instance I would recall the fact thatthree weeks before the Llandovery Castle trialessential witnesses were scattered over sea and landthousands of miles away. Four of them were eitherin the Dominions or were serving on British ships indistant seas. Major Lyon, a doctor on board thieship at the time of its sinking, lived in the West ofCanada, and his address was not known in Londonwhen the trial was announced. A Marconi

operator,who had also been on the ship, was on the point ofsailing from New York to South America. Therewas some very fine staff work in Whitehall, and thesemen were collected and got to Leipzig. MajorLyon only arrived in Liverpool after the trial hadopened, and the Court adjourned the trial for a dayin order that his evidence might be given. Thework of solicitors seldom comes before the publiceye, but it would be ungracious not to mention thefine work done by the Procurator General's Depart-


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34 THE LEIPZIG TRIALSment, and especially by Mr Raymond Woods, inworking up and organising these trials.This account of the preliminary proceedingsbefore the trials took place will explain the circum-stances in which the trials were held. Beforedealing in detail with the various cases that weretried, something should be said of the procedureadopted and of the German Court itself, and thiswill be the subject of the next chapter.


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CHAPTER II: THE GERMAN COURTThe Court which tried the War Criminals was the

Criminal Senate of the Imperial Court of Justiceof Germany. In December, 19 19, the GermanParliament had passed a special law (" Reichs-gesetzblatt," 19 19, No. 247) to carry out the termsof the agreement with the Allies. This law wassupplemented by two later Acts of March, 1920, andMay, 192 1 (" Reichsgesetzblatt," 1920, No. 53, and192 1, No. 51). These laws gave special juris-diction to the Imperial Court of Justice, which is thehighest Court in the land. This Court may fairlybe compared with the Judicial Committee of thePrivy Council, though it must be remembered thaton the continent generally, judges, however respon-sible and however great their jurisdiction, have notthe same high standing in public opinion as theyhave in our own country.

It had been arranged that the nation instigatingthe prosecution should send to the German StateAttorney before the trial full details of the evidenceto be given against the accused men, so that theymight know the case which they had to answer.

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36 THE LEIPZIG TRIALSIn the Belgian and French cases there was a

preliminary hearing before a local Belgian orFrench judge, but as regards the British cases theproofs were forwarded just as they had been takendown by the police officer who had collected theevidence. Under the special German laws formalpreliminary inquiries were held in Germany, atwhich depositions were taken of all the Germanwitnesses whom it was proposed to call. In a fewinstances it was impossible for British witnesses togo to Leipzig to give their evidence, so it wasagreed that this evidence should be taken beforethe Chief Metropolitan Magistrate at Bow StreetPolice Court, German counsel being present torepresent both the German State Attorney and theaccused men. By another provision of the specialGerman laws it was laid down that " w^hen theState Attorney is of opinion that the facts do notjustify an indictment, he may request a trial in orderthat the facts may be ascertained." This procedureis unusual, but in the circumstances it was useful.It was adopted in the British case against CaptainNeumann, the commander of the submarine whichsank the British hospital ship Dover Castle, and inmost of the Allies' trials.The system of judicial procedure prevailing onthe continent differs in many essential points fromthat obtaining in England. In a British trial, theconduct of the case is left to prosecuting and


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THE GERMAN COURT Z7defending counsel, who call evidence at their dis-cretion and explain their case to the Court; Britishjudges know practically nothing of a case beforethe trial opens. In Germany, and in many othercountries, the Court has received and examined allthe proposed evidence before the trial; it decidesbefore the trial whether the witnesses proposed shallbe called and whether their evidence is relevant.Thus in the prosecution of Lieutenants Dithmarand Boldt (the case arising out of the sinking of thehospital ship Llandovery Castle), counsel for thedefence had submitted to the Court some thirtyproofs of witnesses who would give evidencedirected to show that the British Navy generally hadbeen guilty of atrocities in conducting sea warfare,and that the Llandovery Castle and other hospitalships had been used contrary to the provisions ofInternational Law. Before the trial, the Court hadintimated that this evidence was irrelevant, butcounsel for the defence had pressed their claim tocall this evidence and the Court had ruled that,while still of the same opinion, it could not excludethe evidence. The consequences of this will bereferred to in the account of this trial given inChapter IV.The Presiding Judge has, then, read all thewitnesses' proofs before the trial. He begins theproceedings by informing the accused what thecharge against him is. The accused has the same


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38 THE LEIPZIG TRIALSright as in English procedure of refusing to giveevidence, but he cannot give evidence on oath, aprivilege, if such it can be called, only available toan accused in our own Courts since 1898. In theGerman Court, if the accused, decides to giveevidence, the Presiding Judge examines him first.One of the first questions he asks him is whether hehas ever been punished before, a question whichmust seem remarkable to anyone acquainted withthe procedure of the British Criminal Courts, wherethe accused, under all circumstances and howeverblack his record may be, can never be asked anysuch question until the charge upon which he isbeing arraigned has been decided. The judge thencalls witnesses from the lists submitted by the StateAttorney or by the defence in any order that hepleases. Having already read their proofs, hepasses quickly over matters which he considerseither already established or of minor importance.After the examination of a witness by the judge, theState Attorney, defending counsel and the accusedhimself are asked whether they have any furtherquestions to put. If they have, such questions areput through the Presiding Judge or, with hispermission, directly to the witness. Cross examin-ation in the English sense of the word seems almostunknown; in the War Trials, at any rate, witnesseswere never pressed severely, although, in manycases, it was obvious that they were giving their


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THE GERMAN COURT 39evidence reluctantly and were saying a good dealless than they in fact knew. Both during and afterthe examination of the witnesses, the PresidingJudge repeatedly turns to the accused and asks himthere and then to give his version of the incidentof which evidence has been given. Both whilewitnesses are in the box and afterwards, the judgeoften recalls a previous witness to give his versionof the same incident.

This procedure will strike every English lawyeras strange and dangerous. It places an enormousresponsibility in the hands of the Presiding Judge.While listening to the proceedings in the LeipzigWar Trials, I often felt that under such a system,if the judge happened to be biased, I should bepessimistic about my chances of being acquitted onany charge.The German Court does not adhere to strictrules of evidence as do English Courts. Hearsayevidence seems to be given on both sides withoutobjection and matters are considered which anEncrlish Court would consider irrelevant to thepoint at issue. Those who read the judgment inthe case of Lieutenants Dithmar and Boldt will seethat the Court more or less decided the guilt ofCaptain Patzig, the commander of the submarine,and that his conduct was subject to very severecomment; and this in spite of the fact that Patzigwas not present and that proceedings against


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40 THE LEIPZIG TRIALShim for his share in the atrocity might later betaken.

The proceedings in these War Trials remindedone rather of a Military Court of Inquiry or aCoroner's Inquest. The methods adopted wererough and ready. They were certainly expeditious ;the trials lasted about a quarter of the time that anEnglish Court would have required. In the trialof Private Neumann, twenty-five British witnessesgave their evidence, the evidence of three moreBritish witnesses (given before the Chief Magis-trate at Bow Street) was read, there were sometwenty German witnesses, and yet the proceedingswere concluded in two days.The German Court consisted of seven judgeswith Dr Schmidt as their president. The trials wereheld in the big hall of the Imperial Courts of Justice,the same hall where, not long before the outbreakof war, two British lieutenants, Trench andBrandon, had been tried and condemned on acharge of spying in German naval harbours. Thejudges, who looked very dignified in tTieir crimsonrobes and crimson berrettas, sat round a horseshoetable. At the end of the table, at the president'sleft, sat the German State Attorney and hisassistant. At the other end, on the judge's right,sat the clerk of the Court. The witnesses gave theirevidence inside the horseshoe, facing the PresidingJudge. At a separate table on the right, sat the


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THE GERMAN COURT 41accused and his defending counsel. Facing them,on the judge's left, sat the British Mission^ and,behind them, were a few representatives of theBritish press and representatives of the GermanForeign Office and Ministry of Justice.The witnesses, both English and German, werecalled into the Court at the opening of the trials ; aroll-call was taken, and they were warned by thePresiding Judge that no feelings of prejudice orof national animosity must colour their evidence.They then left the Court and were called in one byone as the Presiding Judge determined. Behindthe witnesses, sat the representatives of the Germanpress and, behind them again, numerous rows wereoccupied by spectators. The acoustics of the hallwere very bad and complaints were made even inthe German papers. Above the back of the hall,there was a gallery and, at moments when the trialswere specially interesting, both this gallery and theseats for spectators in the body of the hall werecrowded with people. Before the trials, an appealhad been issued to the German public by somepatriotic organisation that they should boycott the

' The British Mission incUided the following counsel : SirErnest Pollock, K.B.E., K.C., M.P. (Solicitor-General); vSir EllisHume-Williams, K.B.E., K.C., M.P.; Mr V. R. M. Gattie,C.B.E., and the author of this book, his functions being mainlythose of interpreter. Mr Raymond Woods, C.B.E., solicitor,then of H.M. Procurator-General's Department, organised theMission and attended the trials throughout. Mr J. B. Carson,of the British Embassy in Berlin, and Commander Chilcott,M.P., were also present.


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42 THE LEIPZICx TRIALStrials as they were held to be a humiliation toGerman pride. None the less, there was always aconsiderable audience, and at times the big hall waspacked to suffocation.

Never have trials taken place amid more difficultsurroundings. The issues to be tried naturallyaroused the deepest passions in Germany. TheGerman newspapers were doing their worst to createan atmosphere unfavourable to judicial consider-ation. At the British trials of military officers,General von Fransecky attended the Court asMilitary Expert and thought fit to indulge in a full-blooded justification of what we Englishmen regardas the Prussian principle of force and brutality.The defending counsel, with one honourableexception, Dr Edgar Windmiiller of Hamburg, allfollowed his example and indeed went a good dealfurther, for they introduced hatred and prejudiceinto their fiery speeches. They were often speak-ing to press and public rather than to the Court and,in the trial of Lieutenants Dithmar and Boldt, theywere openly and severely rebuked by the Presidentof the Court for doing so. No judges have everhad a more difficult task than to act judicially undersuch circumstances. Dr Schmidt and his colleagueshad it in their power to become national heroes inthe eyes of Germany's " Jingoes," the sections inGermany which still sympathise with the old regime.These sections were powerful still and the judges


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THE GERMAN COURT 43could easily have won their applause by takingsides with their countrymen against the alienprosecutors. On the other hand, they could haveearned, had they wished, the favour of the revolu-tionary element in Germany by giving vent toviolent denunciations of Germany's pre-war militarysystem. In fact they did neither.

At the time of the trials, The Times describedthem as " a travesty of justice " and the EveningStandard said that " Leipzig, from the Allies' pointof view, has been a farce " ; but I do not think thatany Englishman who was present was of thatopinion. However much we may criticise thejudgments of the Court, and however much we maydeplore their inadequacy from the point of view ofjurisprudence, the trials were not a farce and theseven German judges endeavoured throughout tobe true to the traditions of fairness and impartialitywhich are the

prideof all

judicialcourts. To mymind this is a hopeful sign in these days when more

and more international problems have to be settledby argument before judicial tribunals. As a lawyermyself, I felt and feel proud of the legal mind,which seeks justice even though the heavens fall.

When I first saw Dr Schmidt, a few minutesbefore the opening of the first trial, I confess that Iw'as not optimistic. The face struck me as severe;the manner very formal and stiff. Like the Germanofficials whom we had already met, Dr Schmidt was


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44 THE LEIPZIG TRIALSobviously dreading the ordeal which awaited him.He would have been more than human if the pros-pect had not appalled him. But he quicklyresponded to the chivalrous note struck by SirErnest Pollock, K.C., the Solicitor-General, and anhour had not passed in Court before one saw thereal man. The cloak of German formality andstiffness seemed to have disappeared when the judgedonned his crimson robes.

It is a British characteristic to give honour wherehonour is due. Speaking for myself and of the trialswhich I witnessed, I say frankly that Dr Schmidtand his Court were fair. Fully neutral at the start,I learnt to respect them, and am convinced thatthey performed their difficult task without fear orfavour. Personally I should be willing to be triedby Dr Schmidt on any charge, even on one whichinvolved my word against that of a German.

Nothing showed the impartiality of Dr Schmidtmore clearly than his reception of evidence in whichcomplaints were made about the food given in theprison camps. We must remember that Englandhad been blockading Germany; with perfect justicein the opinion of every Englishman. The Germanshad been deprived of all luxuries and of manynecessaries for years on end. Largely thanks to theblockade, Germany had lost the war. Now Britishex-prisoners came back to Germany wfth complaintsthat they did not get coffee, etc., when, in fact, no-


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THE GERMAN COURT 45body in Germany at that time had such things, andeven at the time of the trials only the rich couldafford them. Such complaints were, it is true, onlyincidental and formed but a very small part of thecharges against the prison camp commandants, butthey gave scope for the German press to jeer andfor both the Military Expert and defending counselto be sarcastic. Dr Schmidt would only have beenhuman if he had lost his temper; he too had beendeprived of coffee. But he remained serene andfully investigated the complaints about the food ofthe prisoners.To give an impression of Dr Schmidt, let oneinstance be cited : A witness in one of the prisoncamp cases had spoken to having been hit byNeumann (a sentry) with the butt of his rifle. Thejudge turned to Neumann. " This is the man whoflirted with women," said Neumann angrily, and hejustified his brutality by the necessity for preventingso outrageous a breach of discipline. Imagine thescene. The prisoners had worked in a chemicalfactory; all the local German swains were at thewar; human nature triumphed, and an Englishman,a handsome country lad, had made himself pleasantto a German woman working in the factory. ToNeumann and to General von Fransecky this was acrime. Dr Schmidt merely smiled; he at least wasa man, and not a military automaton. He under-stood human nature.


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46 THE LEIPZIG TRIALSThe strain upon Dr Schmidt in these trials must

have been tremendous. Day by day, he bore a fargreater burden than anyone else in Court. Thesittings of the Court began at nine a.m. and usuallycontinued till two; then at four the Courtre-assembled and continued till six, seven, or evenlater. The strain upon us British was great, but weat least remained silent. Dr Schmidt was talkingmost of the time ; he even himself administered theoath to the witnesses. When I saw him for the lasttime, after a month and a half of incessant WarTrials, his face showed me what a strain there hadbeen upon him.

As I have said, it had been arranged that beforethe trials opened the evidence against the accusedshould be forwarded to the German State Attorney.It was then for him either to frame an indictment orto take action under the special German law, quotedabove. It is important to realise, when reading thejudgments of the Court, that these indictments wereprepared in Germany. In the indictments in theBritish cases there were several formal charges thatthe accused had insulted British prisoners by callingthem " Schweinhund," etc. I cannot imagine anEnglish prosecutor ever framing a criminal chargeon grounds of abuse, or an English Court solemnlydiscussing whether such an insult is a crime. Butof this more will be written in Chapter VI.The German State Attorney at these trials was


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THE GERMAN COURT 47Dr Ebermayer, a gaunt, able, and rather awe-inspiring man whom it was necessary to know in orderto understand. He was a man of few words, and atfirst was very curt and apt to be cryptic, but, as hegained confidence in the British Mission, he becamemore open and human. His was a specially difficulttask because it was for him to conduct the Britishcases, so far as the German procedure leaves theconduct of the case to the prosecution at all. It wasfor him, according to the ordinary criminal procedurein Germany, to ask for conviction or acquittal, andto suggest to the Court what sentence, if any, shouldbe passed.

Under the special German Law of December,1 9 19, it was provided (Section 6) that " the injuredparty is entitled to take part in the proceedings asco-prosecutor. The Minister of Justice can permitother persons also to be present as co-prosecutors."On the arrival of the British Mission in Leipzig therepresentative of the German Minister of Justiceurged that the British lawyers, representing theinjured parties, should assume the role of co-prosecutor and thus take an active part in the trials.But the Allies had agreed that these trials should beGerman trials pure and simple. The Allies' officialnote to the German Government, signed by M.Millerand and dated 7th May, 1920, had expresslydeclared that " the Allied powers have decided thatthey will leave the German Government full and


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48 THE LEIPZIG TRIALSentire responsibility for the trials, without interveningtherein." So this invitation was declined. TheBritish Mission, accordingly, never addressed theCourt, but confined itself to communicatinginformally with the State Attorney and with theofficials of the Ministry of Justice.When the British witnesses were giving evidence,questions and answers were translated sentence bysentence. At all the British trials except one, theinterpreter was Dr W. E. Peters, a German ofAustralian birth, who was a graduate of AberdeenUniversity, and who had refused during the war,greatly to his own inconvenience, to take any partin the German campaign against England. Hisinterpreting left nothing to be desired. The Britishwitnesses soon felt that in him they had a friendamid their strange surroundings.

Though the British Mission was silent in Court,it was ever vigilant, and had frequent communicationwith the German authorities. It was not easy toestablish these informal relations, especially as theGermans were obviously disappointed at the Britishrefusal to assume the role of co-prosecutor. But,such is the force of personality, in a very short timeSir Ernest Pollock was able to secure the adoptionof every suggestion that he had to make. At timeshe had to be severe, particularly when unexpectedevidence was given in the Llandovery Castle caseabout the general conduct of the British Navy. But


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THE GERMAN COURT 49he was always candid, so the German authoritiesalways knew of his criticisms in time to put mattersright. At all times, the British Mission was ready,if necessity arose, to make formal protests againstthe way in which the trials were being conductedand, presumably, to withdraw, if it was convincedthat the trials were unfair. But judges, likeprisoners, are innocent till they are proved guilty.From the outset, the British Mission made it clearthat it assumed that justice would be done. As aresult, the trials were conducted in an atmosphereof mutual confidence.

There is no doubt that the British Mission andthe witnesses who gave evidence in the Court createdan immense impression upon the German Court, theofficials, the press, and public. There was dignityand firmness without swagger. Every Englishmanin Leipzig behaved as the representative of a nationof gentlemen. The British Mission paid officialcalls upon the President of the Court, the StateAttorney, and others, and these calls were promptlyreturned. Whenever the judges entered or left theCourt, the members of the British Mission were thefirst to rise and bow to them. Germans do noteasily understand this kind of chivalry and, while inLeipzig, I often used to wonder what would havehappened if the positions of the English and theGermans had been reversed. From the momentwhen at the German frontier it was my duty to seekD


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50 THE LEIPZIG TRIALSout the officials who had been sent to meet theBritish Mission, I gathered the impression thateverybody concerned in Germany was dreadingthe whole proceedings. But it is un-British to visitnational hatred, however deep and justified, uponindividuals against whom personally nothing isknown. The journey to Leipzig was not at an endbefore relations of courtesy and confidence had beenestablished. This was typical of the British Missionthroughout. Some people, at a time when nationalantipathy is at its height, take a strange pleasure ingoing to the opposite extreme and professingpersonal friendship and brotherliness. The BritishMission did not act thus, but at the same timeeveryone was treated with perfect courtesy andconsideration. As a result of this conduct and ofthe manner in which the British witnesses gave theirevidence, the reputation of England in Germanystood higher than ever. All this perhaps seemedtreason to the minority in this country who thrivedon hatred, yearned for revenge, and could neverdissociate the individual from the mass. But Ihave no hesitation in saying that the way of theBritish Mission was best.

Of the cases which could be brought to trial,three were cases arising out of atrocities to prisonersof war, and three were concerned with submarinewarfare. In the next two chapters the story of eachtrial will be told.


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CHAPTER III: THE BRITISH CASES[PRISON CAMPS]

I . Sergeant Karl Heynen.The first prosecution in the series of War

Criminals' Trials was that of Karl Heynen, who inOctober and November, 191 5, had been in charge ofa number of British prisoners at the " Friedrich derGrosse " coal-mine at Heme in Westphalia. Thiscase was selected, not because the cruelties allegedagainst Heynen constituted the worst prison campcase that could be brought, but because it was knownthat Heynen had already been convicted by a Ger-man court-martial in consequence of his treatmentof the British prisoners under him. This being so,it was considered impossible that the German Courtcould acquit him.

In civil life, Heynen was a master-cooper. Hewas a man of little education, of the stolid, ruggedtype which military training can easily convert intoa brute. He had served in the German Army from1895-97 and had then passed into the Reserve.When the Great War broke out, he was called up asa non-commissioned officer in the Landsturm. He

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52 THE LEIPZIG TRIALSfought in Russia where he was wounded, and it wasin consequence of his wounds that he was posted toduty with prisoners of war.The following extracts from the judgment of theCourt tell the story of the events which led up to thecharges made against Heynen:

There were -placed under him two hundred andforty prisoners of war of whom about two hundredwere English and forty were Russians- They wereto work in a colliery- This was kept secret fromthem, probably because it zvas foreseeii that theymight be unwilling to undertake such work- Infact they believed^ from what they had been told,that they were to work at a sugar factory-He received as his sentries a draft of oneLanee-Corporal and twelve Tandsturm men, mostof ivJiom had oiily received their necessary trainingduring the war.On i^th October, 19 15, the accused with hisdetacJiment of sentries and the prisoners leftMiinster for Heme. He had received no furtherorders than that he had to see to it that the prisonersundertook the work intended for them; he was tomake his ozvn arrangements; until his arrival incamp in Heme he zvas to keep silent about theirplace of destination and the work intended for them.On the way discontent became apparent among theprisoners because they saw that they were going tobe made to work in a mine. They vented their


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THE BRITISH CASES 53discontent by such utterances as " Nix Minen " andthus let it be understood that they would not workin a mine.

It was impossible for the accused to make hiyn-self understood to the prisoners, as he had not beenallotted an interpreter. After arrival at the RailwayStation at Herne the accused first endeavottred tofind ajnongst the English prisoners a man whounderstood German sufficiently to be able to act tosome extent as an interpreter for his fellowprisoners. Such a man he found in the Englishprisoner Parry, who, however, at that time had bidlittle knowledge of German.

In consequence of the discontent generally pre-vailing among the prisoners, their march fromHeme Railway Station to the camp {a distance ofabout half-an-hour s walk) was very slow.

During the night of i^th-i^th October theEnglish prisoners agreed jointly to refuse to workin the mine, partly because only a few of them wereminers and they did not like this kind of work, andpartly because they looked upon such work as a helpto Germany in her conduct of the war. In conse-qtience of this, on the morning of id^th October, onlysome of the prisoners who were to form the morningshift put in an appearance. Some of these, how-ever, had not put on the mining clothes which hadbeen given 02it to them. As they had planned, theyrefused to obey the order to put on the mhiing


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54 THE LEIPZIG TRIALSclothing. There were loud sliouis such as " NixMineny They informed the accused throughParry that they would not go down the mine andgave their reasons.

In view of the strict orders given to the accusedto see that under any circumstances the work wasundertaken^ he found himself in a difficult -position.In order to enforce obedience to his order to changeclothes, the accused first ordered his men to loadtheir rifles and to fix bayonets before the prisoners^eyes, thtis showing without any doubt that heintended his order to be obeyed. By no such meanscould he succeed in breaking the disobedience ofthe prisoners. He was no more successful when hearrested a 7iumber of them. The prisoners stillmade it clear that they were determined not to obeythe order to change their clothes. The positionwas not changed even when the pickets showedclearly that they were ready to use their bayonetsand rifles. In order to break the prisoners' deter-mination before their insubordination grew worse,the accused, thrown back entirely upon his ownresources, was obliged to use force to secureobedience to his orders.

In their evidence the British witnesses franklyadmitted the refusal to obey orders, and one and alldeclared that their reason was that it was illegal forthem to be made to work in a coal-mine, such workbeing of assistance to the enemy's military operations.


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THE BRITISH CASES 55It must have required enormous courage on the partof these prisoners to take up their stand in the faceof armed men with the whole miHtary machine ofGermany behind them. It was some time beforethey could be compelled to obey Heynen's orders.They were struck and kicked by both Heynen andthe sentries ; they were divided into small groups andby brute force compelled to put on their miner'sclothes and to go to work in the pits.

But even when the prisoners had been induced todo the work prescribed for them, the brutalities didnot cease. They were assaulted both while workingin the mine and also in the camp. The Court foundthat

"the prisoners, after their first resistance hadbeen broken, took up their work in the mine and

that they subsequently executed it without hesitation,if with varying diligence." But none the lessHeynen's attitude towards them grew worse.Two instances will show the kind of treatmentto which these unfortunate prisoners were subjected.One of the prisoners was a man named Cross,since dead. The allegation in the indictment ofHeynen was that Cross became insane as the resultof cruelties which Heynen inflicted upon him.Several of the witnesses told the Court how Heynenhad thrashed Cross, and one of them (Burridge) toldhow Cross used to cry out in his sleep, " Take himaway," still in terror of his brutal commandant. Itwas not disputed at the trial that Heynen forcibly


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56 THE LEIPZIG TRIALSput Cross under a shower-bath. Some of thewitnesses said that this bath lasted over an hour, andthat Cross was put alternately under hot and coldwater. Evidence for the defence was called to theeffect that the structural arrangement of the shower-bath did not permit of any such alternating of hotand cold water. Other British witnesses spoke tohaving seen civilian labourers gathering round theoutside of the wash-house, attracted by the shrieksof the unfortunate Cross. Parry, the interpreter,admitted in his evidence that Cross " was strangebefore the bath," but he was definite that " he wasmad afterwards." On this brutal incident the Courtfound as follows :The English prisoner Cross sriffered fromabscesses in the lower fart of the leg. Some dayspreviously the doctor had ordered that poulticesshould be givejz him. On November \^th Crosswent to the accused to get bound up and seemedclumsy while he was being bandaged. The accusedin consequence got very excited and hit him withhis fist. Cross fell frojn his stool. As he lay uponthe ground the accused kicked Him. . . . Theaccused ordered that Cross shoidd be given a bath.Thereupon Cross was brought into the bathroom^and., after his clothes had been taken off, was placedunder the shower. He struggled and cried outloudly, and when he wanted to get away he wasagain put under the shower. How long Cross


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THE BRITISH CASES 57was kept under the shower cannot be establishedwith certainty. Such statements about time areusually aft to be incorrect, and in addition to this,the memory of witnesses on this, as on many otherpoints in regard to the charges, has naturally andobviously become vague. There can be noquestion of this shower-bath having continued foran hour or 7nore; it is more likely that the wholeproceeding in the bathroom {as has been stated bythe English prisoner Burridge) took only a fewminutes. . . . The ill-treatment in regard to Crossof which accused is guilty is limited to the blowsand kicks when Cross showed the sores on his

leg.With reference to the charge of having in additionill-treated him in the bathroom he is acquitted. Itis also untrue that Cross became insane as a resultof the treatment that he received. As his comradeshave admitted, Cross had previously showyi signs ofmental derangement. When these signs becamemore apparent after the ill-treatment to whichhe had been subjected, he was hmnediately sentto the doctor at the instance of the acctised andthe doctor sent hi?n back to the main camp atMiinster.

The other instance concerned the prisonerMcDonald, an attractive, boyish, foreman-stevedoreof Liverpool, whose frankness and personality quitecaptivated the Court. McDonald and anotherprisoner had escaped from the camp and was


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THE BRITISH CASES 59still be sent to work in the pit with tJie morningshift. In consequence of this, dtiring the early daysthe indticement to report sick out of pure disinclin-ation to work was comparatively small. After sojnetime Dr Kraus became exceedingly busy in conse-quence of the scarcity of doctors, and so he orderedthat prisoners who reported sick should be broughtto his residence during his considting hours. Thistook up so much time that prisoners who werefound on inspection to be fit for work missed thewhole shift. Thus numerous prisoners wereinduced, although they were not sick, to reportthemselves to the doctor, in order that they mightat least escape work. This practice became socommon that often there were gaJigs of twenty andthirty prisoners going to the doctor, of whom onlyisolated cases were really sick. This was bad forboth the doctor and for the work which had to bedone, so the accused was told to send to the doctoronly those prisoners whom he himself considered tobe sick. He was particularly told to take thetemperatures of all prisoners reporting sick and,except where there were signs of other illnessbesides fever, to allow only those prisoners to go tothe doctor who had temperatures which showedfever. It has not been proved thai the accused didnot properly carry out this duty of examiningprisoners. In particular there is no proof that heknowingly prevented sick men from going to the


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6o THE LEIPZIG TRIALSdoctor. He 7nust, therefore, be acqtiitted on thispart of the indictment.But, though acquitted on this part of the charge,Heynen was found guilty of more than one assaultupon sick men. For instance, it was accepted that" he struck Jones in the face with his fist becauseJones, who had a swollen cheek, declared that hehad toothache."

It was not only the British prisoners whocomplained of Heynen's brutality. A Germanwitness (Murken) admitted that he once said to afellow-sentry, " This is intolerable," referring toHeynen's conduct generally. Heynen was, hesaid, " frightfully severe to the prisoners andourselves. . . . We decided to send in a reportabout Heynen."The Court found that " there has been nocomplaint of any kind of excess towards the Russianprisoners of war who were placed under him andw^ho were occupied with agricultural work." Thatthere was no complaint, only proves, one wouldthink, that the Russians were more accustomedto Heynen's methods than were the British.

Of the general conditions in the camp the Courtsaid as follows :The -prisoners had no pistifiable grounds forcomplaint about their lodging and maintenance.The lodging conditions were satisfactory and theaccused endeavoured with great zeal to remedy the


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THE BRITISH CASES 6idefects of the camp, which at the beginning stillrequired improvemeyit. . . . Thai the food was notmore strengthening and more -plentiful was due tothe general food difficidties already prevailing atthat time in Germany. That the English prisoners,especially after the abundant conditions obtainingin their own country, suffered no serious want isshown by the fact that they frequently threw awaytheir vegetable and meat soup., and sometimesspitted their ration of liver-sazisage on the barbedwire of the camp.

Heynen was obviously quite unfitted for hisresponsibilities and particularly unfit to deal withthe sturdy British spirit. He was overworked and,in the end, scarcely responsible for his actions. Hestated in evidence that he often worked from foura.m. to midnight; he was just the type that over-works out of sheer incompetence. The Courtfound :

Little as his failings can be excused, yet theycan be explained to a large extent by the unstintingway in which he devoted his energetic personalityto his appointed task. In carrying out his dutieshe spared himself least of all. He developed a stateof irritability and excitement which almostamounted to an illness, and this more and moreundermined his self-control. This is show7i clearlyby the increasing number of offences towards theend of his period of command. . . . A^


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62 THE LEIPZIG TRIALSintention of ill-treating the prisoners -placed underhim has been found. 0)1 the contrary, his condtcciin all these cases was due to momentary annoyanceor excitement, especially when he was concernedwith men who were reporting sick without any, orany apparent, reason.

Apart from the offences of which he is nowfound guilty, the accused bears an excellent andblameless character, both as a citizen and as asoldier. This applies especially to his later term ofmilitary service. He was removed from his com-mand as soon as his offences against prisonersbecame known in higher quarters, namely, on 26thNovember, 19 15. On ^th April, 19 16, he wassentenced by a court-martial, partly on account ofthe cases of ill-treating prisoners of which he nowstands convicted. But afterwards he won back thetrust and appreciation of his superiors. Heagain reported himself at the Front and during theyears 19 16- 18 he took part in the battles' o?t theWestern Front. He earned the distinction of theIron Cross of the // class, and on ijth April, 19 18,he was promoted Sergeant.Above all it has to be realised that he had had noadequate instruction ^;^ his duties and that his staffof sentries was inadeqtiate, both as regards qualityand mmiber. He was thus placed in an extremelydifficult position, a position which was beyond hisstrength and abilities.


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THE BRITISH CASES 63During the trial, Heynen showed no trace

whatever of either anxiety or emotion. He stead-fastly denied most of the incidents to which theBritish witnesses had spoken. On more than oneoccasion the President of the Court turned to himand said angrily that it was useless for him merelyto deny the charges that were being made, as theCourt was convinced that the British witnesses wererespectable men telling the truth.

After the evidence came the speeches. It wasin this trial that the German military expert,General von Fransecky, made the speech whichattracted a great deal of attention at the time in theBritish press. He justified Heynen's conduct onthe ground that it was his duty, at all costs, to secureobedience to his orders. He spoke of the traditionsof obedience obtaining in the German Army, andproudly claimed that Heynen had these traditions" in his flesh and blood." Dealing with therecalcitrance of the British prisoners and with theirrefusal to obey orders to work in the coal-mines, hesaid that, under no circumstances were prisonersentitled to object to any order given them, and thatHeynen was fully justified in using his rifle, and inordering the sentries to use theirs, in order to compelobedience. He maintained that the conduct of theBritish prisoners amounted to mutiny, and that,therefore, the use of force against them was justified.At this juncture the President of the Court pointed


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64 THE LEIPZIG TRIALSout to General von Fransecky that, according to theGerman mihtary code, force could only be usedagainst unarmed men in cases " of extremenecessity " involving physical danger. General vonFransecky urged that the circumstances in whichHeynen had to act came under this category, butthe President told him frankly that the Court wasnot impressed with the argument that it was for thebenefit of military discipline to punish recalcitrantprisoners by boxing their ears and knocking themabout indiscriminately. The President later againinterrupted General von Fransecky, and pointed outthat, if Heynen realised that the situation wasbeyond his powers, he should have asked forassistance from his superior officers. General vonFransecky answered this by saying that Heynenrightly felt that it was for him to secure obedienceat any cost.

Listening to General von Fransecky, one seemedto hear the war-time German High Command speak-ing, rather than the mild-mannered old gentleman inmufti who was addressing the Court. The General,apart from the sentiments that he was expressing,seemed utterly unlike a typical German General.My own impression was that at heart he deploredHeynen's brutality, but that he forced himself totry to justify him out of misplaced loyalty to themilitary machine. General Fransecky made a greatmistake in doing this, for he justified, not Heynen's


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THE BRITISH CASES 65conduct, but the conduct of those who insisted uponhis trial in order to secure the condemnation ofGermany's war-time military system.Then followed the State Attorney. In hisspeech he admitted that there may have been inHeynen's mind a fear of mutiny, and he agreed thatthe refusal to work on the part of the prisonersjustified severe measures to secure discipline. Hepointed out, however, that the complaints as tobrutality had not only come from the Englishprisoners. He described Heynen's conduct as" unheard-of " and " brutal," and he vigorouslydenied that anything in the nature of a mutiny hadexisted. He said that military law does not justifythe reckless infliction of injuries upon individuals orinsults being hurled at them. He maintained,however, that the prisoners were bound to work inthe coal-mines. He placed due weight upon thegeneral good conduct of the accused, and came tothe conclusion that he must ask for a sentence oftwo years' imprisonment.

Dealing with the arguments of General vonFransecky and of defending counsel, that Heynenwas justified in using brutal means to break theprisoners' resistance to orders, the Court found :He was bou7id by the orders given to him to seethat the work was done and by those orders he wascovered, hi view of these orders, a reftisal ofobedience, especially when general, was hiadmis-

E


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66 THE LEIPZIG TRIALSsible. Though they had a right to lodge coniflaints,the frisoners, as subordinates, were bound to complyunconditionally with the orders of the accused, evenin cases in which they considered the orders to beillegal. In so far as the accused employed force,or ordered it to be employed, in order to compelobedience to his orders, he has not acted contrary tolazv and consequently has not rendered himselfliable to punishment. This right of cojnpellingobediejtce includes, under the then existing circutn-stances, a right to make any necessary use ofweapons. The accused com?niited no breach of thelaw when, under such circtimstances, he used tJiebutt end of the rifle against unruly prisoners. Itis essential, however, that, in the use of physicalforce, whether by the use of weapons or without, aman in such a position should not exceed the degreeof force necessary to compel obedience. It has notbeen proved that the accused went beyond thislimit. It seems quite clear that no serioiis woitndswere inflicted, in spite of the use of weapons.

In all the cases included in the indict?nent whichrelate to ill-tisage in direct connection with themutino2iS refusal to work on i/^th October, theCourt has arrived at the decision to acquit theaccused.

But none the less the Court found Heynenguilty on fifteen charges of brutality that wereunconnected with any refusal to obey orders. His


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THE BRITISH CASES 67treatment of Cross was regarded as his most seriousoffence. In addition to these offences, Heynen wasfound guilty on three charges of insulting prisoners.Heynen had called Parry and two other prisoners" Schweinhund " (Pig-Dog). These " crimes," soserious in German eyes, will be referred to later inChapter VI.

The sentence finally passed upon Heynen wasas follows :

There can be no question of detention in afortress, in view of the nature of his offences,especially those committed against prisoners whowere undotibtedly sick. On the contrary a sentenceof imprisonme7tt must be passed. The accused iscondemned to ten months' imprisonment. Theperiod of detention during the inquiry will beco2i7ited as part of the term of imprisonment nowordered.

2. Captain Emil MtJLLER.This case was far more serious than either of

the other prison-camp cases. In the first place, thecruelty inflicted upon the unfortunate prisonersresulted in a heavy death-roll ; secondly, Miiller wasa man of education, and an officer. In civil life hewas a barrister, livin'"' larlsruhe.


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68 THE LEIPZIG TRIALSIn April, 191 8, Miiller was a Captain in the

Reserve, and was appointed to take command of theprison camp of Flavy-le-Martel shortly after theneighbourhood had passed under German control.To quote the judgment of the Court:The duties of the Company Commanders con-sisted solely in housiyig, feeding aiid sufervisingtheir -prisoners, and in arranging, day by day, toprovide the troops requisitioned for outside work.They had nothing to do with the regulation of thiswork itself or settling the hours of labour. Thiswas the business of the Commander of the Battalion.

The Company Commanders took over a campwhich was found einpty . The camp had shortlybefore been taken from the English during theMarch offensive, and had previously been used bythem as a camp for the temporary reception ofGerman prisoners of war. It was in a wretchedcondition. It lay in a marshy and completelydevastated district, immediately behind the fightingline, where everything was still in constant move-ment. During the time the English had been inpossession of it, it was unfit for human occupation.The witness Roeder, who at the end of January andbeginning of February, 19 18, had taken part in thewar on the English side, and had often come thereas interpreter, gave evidence that the accommoda-tion had been defective in the extreme. In the tworesidential barracks, which together afforded room


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THE BRITISH CASES 69for some three hundred prisoners only, double thatnumber had been quartered. These barracks hada muddy, unboarded floor. There were no beds,but only some rotten wood-wool, which was infectedwith vermin. Windows and roofing were leaky.There were but two small so-called trench stoves,so the German prisoners suffered from the cold inwinter. The latrines were as primitive and un-wholesome as can be imagined. There was acomplete absence of sanitary arrangements, and alsoalmost a complete absence of facilities for cookingand washing as zvell as of rugs. As a consequence ofall this, numerous prisoners had become sick withvifluenza and intestinal troubles, especially withdysentery . Many had died. All had co^Jiplainedof the plague of lice. Even the English guard hadsuffered heavily. An English doctor had endeav-oured in vain to remove these defects.

It is desirable to set out this finding at the outsetbecause the appalHng sufferings of the Britishprisoners at this camp were primarily due to itsphysical conditions, and one of the principalquestions in the trial was the extent to which CaptainMiiller was responsible for the suffering and thedeath-roll that resulted. The evidence of Roederhad great weight with the Court, but the mostimportant part of his evidence was that, when thiscamp was under British control " as a rule menwere only three or four days there ; occasionally a


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yo THE LEIPZIG TRIALSfortnight." Roeder added that " the Britishcommandant behaved very well."There is an enormous difference between usinga camp as a temporary " cage " where three hundredto six hundred prisoners were housed for a few days,and using the same camp, without alterations, as asemi-permanent camp for well over one thousandmen who were doing heavy work. The outsidefence of the camp was only about two hundred yardsin circumference, and the whole area of the campsoon became one large cesspool. The men rapidlygot into a filthy and verminous condition and becameafflicted with sores. The accommodation wasutterly insufficient. The thousand men were herdedin three huts, the approximate dimensions of whichwere sixty feet by twenty feet. There were no floorboards, and no bedding or camp utensils weresupplied. The men had to sleep on the wet ground,and so crowded were the huts that there was notroom for all to lie down. One witness (Higgin-botham) told the Court that " each hut could at mosthold one hundred men. We slept on the earth.We could not all get into the huts, but were drivenin by sentries. All could not lie down."

The Court found that :The accused found the camf in precisely this

condition, and had to do his best with it. Theposition was rendered more difficult for him becausehe was obliged to quarter over one thousand men in


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THE BRITISH CASES 71the barracks, as fresh prisoners were constantlyarriving. Further, all the wells round about wereruined. The food allotted was insufficient, andduring the first days he had no medical assistance.Finally, he was obliged to detail daily very manymen for heavy outside work, and the prisoners werealready in a quite exhausted condition when theycame under him. They were inadequately equippedwith uniforms on arrival, as also with underclothes,rugs and so on.On this latter point the evidence was conflicting.A British prisoner (Eccles), who had kept a diarywhile in the camp, swore that " we arrived clean,"but a German witness (Terluisen) stated that " themen were very lousy " on arrival at the camp.

Another point on which the evidence wasconflicting was the duration of Miiller's command.Eccles' diary showed that the first deaths amongprisoners were on 4th May, and that Miiller leftthe camp on 7th May, but several of the Britishwitnesses believed that there were deaths beforethen, and that he was at the camp considerably laterthan 7th May. The Court decided that:The accused held this position from the begin-ning of April until ^th May, 19 18, that is to say,for a period, of about five weeks. On the /\th Mayhe was given leave, as he needed treatrnent forneurosis of the heart. He left the camp on


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72 THE LEIPZIG TRIALSThis finding was fully in accordance with the

balance of evidence.In consequence of the conditions in which the

prisoners were compelled to live, they rapidly becameweak and repeatedly fell out on the road going towork. Dysentery became rife, and within a monthno less than five hundred men were suffering from it.Notwithstanding this, the sick men were sent out towork. The awful death-roll was directly and solelyattributable to the appalling conditions of life prevail-ing at the camp. The Court found that :

This efidetnic developed after the departureof the accused in such a manner that a large pro-portion of the prisoners had to be transferred intothe interior to Stendal^ where many more died fro7nit. In the camp itself the number of deaths fromdysentery is said to have bee

(1921) leipzeig trials

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