Malmedy massacre trial

The Malmedy massacre

The Malmedy massacre trial (U.S. vs. Valentin Bersin, et al) was held in May–July 1946 in the Dachau concentration camp to try the German Waffen-SS soldiers accused of the Malmedy massacre of December 17, 1944. The highest-ranking defendant was the former SS general, Sepp Dietrich. It attracted great attention because of the nature of the crime and the later disputes about the conduct of the trial.

Before the trial

The announcement of the Malmedy massacre had outraged the American forces present on the European operations theatre as in the United States. There is thus no wonder that as from the end of the war, the allies started to look for the persons in who had perpetrated these massacres among the hundreds of thousands of German prisoners of war they had under their control. However, during this research, it was not possible to prevent the accused from communicating with one another. As a consequence they could easily determine what the investigators were looking for. Moreover it seems that they got the possibility of elaborating versions of the facts which were relatively concordant.

It was ultimately only once that they were gathered in a German civil prison, Schwabisch Hall, requisitioned by the military authorities of occupation that it was possible to prevent an organized communication between the accused. The defendants were held in this prison from December 1945 to April 1946. It is during this period that the interrogations carried out by the investigators took place.

In addition, because of the demobilizations due with the end of the WW2, the American army, which investigated the facts, was confronted with a shortage of staff with sufficient experience of the legal procedures. To solve that problem, it was called upon personnel of European origin who had little awareness of the legal procedure into force in the United States. Furthermore, some of the people had apparently had problems with theNazi regime before leaving Europe. Among others, it seems that two of the main investigators, Lieutenant Perl and a civil auxiliary were Jews having fled Germany for the United States before the beginning of the war.

This might explain why the interrogations and the investigations preliminary to the trial were not carried out rigorously. It has later been proven that some defendants were subjected to mock trials including false death sentences in order to extort confessions. On the other hand, as an investigation led by the Senate of the United States after the trial would eventually show in 1949, the defendants were not tortured or deliberately starved in order to obtain consents. The senatorial Commission however had admitted that some of them could have been occasionally beaten by their guards.

All these fact were going thereafter to weigh on the trial and its aftermath.

Trial

The trial – Case Number 6-24 (US vs. Valentin Bersin et al) – took place at Dachau from May 16, 1946 to July 16, 1946. The defendants appeared before the Dachau Military Tribunal made up of American officers of high rank. The court functioned however according to rules founded previously by the international military tribunal judging the Nazis dignitaries in Nuremberg.

The defendants were 75 former soldiers (most from the 1st SS Panzer Division "Leibstandarte Adolf Hitler"), the highest in rank were General Sepp Dietrich head of 6th SS Panzer Army, his chief of staff General Fritz Krämer, Lieutenant General Hermann Priess commander of the I SS Panzer Corps and Lieutenant-colonel Joachim Peiper commander of the 1st SS Panzer Regiment (the core element of Kampfgruppe Peiper) the unit which perpetrated the massacre), .

The counts of indictment related to the massacre of more than three hundred American prisoners of "in the vicinity of Malmedy, Honsfeld, Büllingen, Ligneuville, Stoumont, La Gleize, Cheneux, Petit Thier, Trois Ponts, Stavelot, Wanne and Lutrebois", between December 16, 1944 and January 13, 1945, during the battle of the Bulge as well as the massacre of hundred Belgian civilians mainly in the vicinity of Stavelot.

The defense directed by Colonel Willis M. Everett Jr., a lawyer originating from Atlanta, assisted by other American and German lawyers. Everett had little or no experience in criminal law and was intimidated by having to defend 75 people on little notice. On the other hand, the German lawyers, although experienced, were unfamiliar with the American military judicial system.

Apparently, no defendent asked for a postponement of the trial in order to lay out more time for the examination of the case and of the documents made available to the defenders.

The prosecution was put under the lead of Colonel Burton L Ellis.

The evidence of the prosecution were based primarily on affidavits collected before the trial as well from the defendants as from witnesses. The prosecutors also specified that many declarations had been obtained from the defendants thanks to various ruses and tricks..

These procedures were however not repudiated by the Court in spite of the repeated objections by the defense and the affidavits were accepted when they accused the informant himself as well as when they blamed other co-defendants..

Six defendants, among which Peiper explained to the Court they had been physical victims of violence or threats of violence intended to force them to provide extrajudicial confessions during the instruction of the trial. The people in charge of these interrogations refuted these charges which were not upheld by the Court.

Furthermore the defendants were invited by the prosecution to take the stand confirm the statements they had made before under oath.

On the other hand, the defense very quickly decided not to have the defendants take the stand to their own behalf. Indeed, after nine of them had taken the stand, it became obvious that they accused other fellow defendents in order to minimize their own role. For Everett, it was certain that this would considerably weaken the position of the defense. It needed nevertheless to fight to convince the defendants to give up their right to be heard by the Court.. Among the nine who had already taken the stand, only three had cited the mistreatment which they had allegedly undergone during the investigation.

For most of the defendants, the defense made the point that they did not participate to the facts and if they did it was pursuant to superior orders..

The Court eventually decided that all the defendants but one were culprits to differing degrees. Forty-three of them were condemned to death by hanging; the others were condemned to penalties going from ten or twenty years of prison to life. Peiper was sentenced to death; Dietrich was condemned to a life sentence and Priess to 20 years of imprisonment.

The men sentenced to death requested to be shot by a fire squad rather than hung, citing their military status, but this was refused by the Court.

The deliberations of the Court were rather short, on average a few minutes being devoted to each defendant.

Verdicts

On July 16, 1946 the verdict was delivered on 73 members of the Kampfgruppe Peiper.

• 43 sentenced to death by hanging, including Peiper
• 22 sentenced to life imprisonment
• 2 sentenced to 20 years imprisonment
• 1 sentenced to 15 years imprisonment
• 5 sentenced to 10 years imprisonment

After the trial

Once the Court had pronounced the sentences, the case could have been closed. In fact, this was only the beginning.

Review procedure

Pursuant to procedure, an in-house review was undertaken by the American occupation army in Germany, the trial was carefully examined by a deputy judge. Taking into account the doubts which surrounded the investigation phase, he issued in several cases recommendations of free pardon or commutation of the death sentences, which were often followed by the General Lucius Clay, General commanding the American zone in occupied Germany. This procedure can however not be regarded as a true appeal procedure.

Other appeals

Colonel Everett still felt very concerned by this case and was convinced that a fair trial had not been granted to the defendants. Furthermore, in Germany self, voices rose from various circles to claim the grace of sentenced men. Among others, the Princess Helene Elisabeth von Isenburg, founder of a movement of assistance to the prisoners of war and the internees "Stille Hilfe", sometimes presented as movement of assistance to the ex-Nazis, managed to mobilize the attention of certain members of the Catholic and Protestant hierarchies in Germany in favour of the defendants. Rudolf Aschenauer, who had been the defender of one of the defendants in the trial of the Einsatzgruppen had also been in liaison with the defendants and had worked for the revision of the lawsuit.

Approximately sixteen months after the end of the trial, almost all the defendants deposited affidavits repudiating their former confessions and alleging aggravated duress of all types. Among others, they it was spoken about teeth and blows in the testicles having involved irremediable disabilities.

To get to the revision of the trial Colonel Everett lodged appeals to the Supreme Court of the United States and the International Court of Justice of The Hague. The latter declared itself incompetent, since it acknowledges only procedures engaged by States and not by individuals. The Supreme Court took no decision. Four judges decided in favour of a revision and four against. It was impossible to obtain a majority, the ninth judge, Robert Jackson refusing to issue an opinion because he had been a prosecutor in the main Nuremberg trial.

The Simpson Commission

The turmoil raised by this case brought the Secretary of the Army, Kenneth Royall, to create a commission chaired by Judge Gordon A. Simpson of Texas to inquire about this. Apparently, the Commission was not interested only in charge of the Malmedy massacre trial, but had also to deal with other cases judged by the International Military Tribunals (in fact mainly Americans) in Europe.

The Commission arrived in Europe on July 30, 1948 and issued its report on next 14 September. In this report, the Commission notably recommended that the twelve remaining death sentences should be commuted to life imprisonment.

The Commission expressed the opinion that the pre-trial investigation had not been properly conducted and that they felt that no death sentence should be executed where such a doubt existed. The Commission did not found evidence of tortures in the case of the culprits of Malmedy, even if it notably admitted the reality of mock trials.

One of the Members of the Commission, Judge Edward L. Van Roden of Pennsylvania, disunited however from the conclusions of the Commission and made several public statements where he affirmed the materiality of physical violence with regard to the sentenced.

Furthermore, under his signature, an article denouncing the conditions under which assumed culprits of Malmedy and of other cases had been questioned was going to be published in February 1949 with the assistance of the National Council for Prevention of War. To the charges of violence confining with torture, Van Roden notably added that during the instruction, the defendants had been put in cells isolated for periods from several months or had been starved.

This article would cause a great turmoil in the United States, because it described behaviours perceived as being in total contradiction with the American principles of fair-play. In answer, General Clay commuted six more death sentences to life imprisonment. He however refused to commute the six last death sentences, including Peiper’s sentence, but the executions were postponed.

The Senate’s sub-committee

The case eventually took such proportions that the Senate decided to investigate on it. Choosing a Committee that would carry on the investigation was not that easy. Ultimately, the case was entrusted to the Committee on Armed Services which got the edge over the Judiciary Committee and the Committee on Expenditures in the Executive Departments, which might retrospectively be regarded as a mistake. Indeed, one cannot exclude that the Committee on Armed Service might have been more lenient with the Army which, after all, had carried out the lawsuit, than other Committee would have be. This feeling is reinforced by the fact that the investigation was entrusted to a sub-Committee of three senators of whom the president, Raymond E. Baldwin, had been member of the same law firm as one of the prosecutors of the trial.

The sub-Committee was set up on March 29, 1949, at the beginning of the cold war and during the Berlin blockade and worked during several months. Its members went to Germany and during its hearings, the Commission did not see less than 108 witnesses.

Furthermore, a young and ambitious Senator and in search of publicity, Joseph McCarthy, had obtained from the sub-Committee’s chairman the authorization to attend the hearings. Apparently, McCarthy, who felt that his Senator career was fading, had decided to seize the opportunity to make he name known everywhere. In addition, its State of origin (Wisconsin) had a strong population minority of German extraction and one can not exclude that he considered that taking the defense of the culprits of the Malmedy massacre as potential opportunity from a political point of view.

The fact is that McCarthy seemed to have taken the complete lead of the sub-Committee’s investigations and tried to force his theses at all costs although we was only attending because Baldwin’s courtesy. He went to quite aggressive questions, even with towards the survivors of the massacre whom he on occasion accused of being liars. Moreover, pursuant to tactics for which he would be later become infamous, he usually deformed the facts in order to retain the versions that could corroborate his vision of the case. In that way, all the investigators became Jews, the many of the sentenced had not only had been dastardly beaten but also were 15 or 16 years old teenagers.

The last clash took place in May 1949 when he asked Lieutenant Perl to be given a lie detection test. Since this had been refused by Baldwin, McCarthy left the session not without claiming that Baldwin was trying to whitewash the American military. Thereafter he also tried to denounce Baldwin in front of the whole Senate, but this had been repudiated by the Commission on Armed Forces, which had clearly shown its support to Baldwin and had eventually adopted the report of the sub-committee. A little later McCarthy would chose to start the witch-hunt that made his fame.

The sub-Committee report

In its report, the sub-Committee has acknowledged the reality of some facts, as the mock trials, the use of hoods or containment. On the other hand, the sub-Committee did not retain the most serious charges like the blows, torture, the fake hangings and the starvation of the defendants. Furthermore, it had completely rejected the allegations of Van Judge Van Roden.

In addition, the sub-Committee considered that commutations of sentences pronounced by the Clay General had occurred because of the recognition by the army owing that the investigations had not always been properly carried out or that procedural irregularities could have been made during the trial.

On the other hand, the Commission did not take position on the culpability of the condemned. On the contrary, it endorsed the conclusions General Clay issued in the particular case of Lieutenant Christ. In summary, Clay had written that “he was personally convinced of the culpability of Christ and, that for this reason his death sentence was fully justified. But, to apply this sentence would be equivalent accepting a bad administration of justice, which led him, not without reserve, to commute the death penalty to life imprisonment”.

Last commutations

Ultimately, the Commission Report combined to the intensification of the cold war, which required that the United State had the West Germans on their side, led the American army to commute the last death sentence to life imprisonment. In the next years, all the men were released one after another, the last one to leave his cell being Joachim Peiper.

The aftermath

As from 1946, the trial and its shortcomings have been used by the revisionists and negationist media in the United States and in Europe in order to try to invalidate the results of the Nuremberg trials as well as the existing information concerning the holocaust.

For instance, already in 1950, the French author Maurice Bardèche devoted a whole chapter of his book "Nuremberg II or the False Money Makers" to the Malmedy massacre and the trial that followed. The bulk of his account of the lawsuit is however based on the disputable article of Judge Van Roden which, according to the sub-Committee, quoted unproven facts. Furthermore, Bardèche did not hesitate to mix lies and truth, notably writing that some of the men sentenced to death for the Malmedy massacre had already been executed.

But this was only the beginning. Since then this case is regularly recalled in the revisionist literature and is presented like an on purpose winner made justice. The way the Malmedy massacre trail is presented and commented is however often quite partial. Among others, it often happens that only the Malmedy massacre is taken into consideration while one generally overlooks that it was not the only fact that came under examination of the Court since several massacres of prisoners of war and of civilians had taken place within a few days.

On the other hand, there is little doubt that culprits have escaped any sentence whereas innocents were condemned for crimes they did not perpetrate.

Michael Reynolds might well have written the most relevant conclusion on this episode of the Second World: “In the final analysis, justice itself became another casualty of the incident”.

See also

• Nuremberg Trials
• Biscari Massacre

External links

• Time Magazine Clemency Jan. 17, 1949
• The Malmedy Trial and the Legends of Tortured Defendants, IGDR. In German. http://www.idgr.de/texte/legenden/folter/folter.php
• Malmedy Massacre Trial. http://www.scrapbookpages.com/DachauScrapbook/DachauTrials/MalmedyMassacre01.html
• MALMEDY and McCARTHY Printed in the AMERICAN MERCURY November 1954 By Freda Utley
• a website with picture of the bodies and of the Dachau trial [3]