Military jurisdiction (National Socialism)

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The National Socialist leadership of the German Reich reintroduced the military jurisdiction ( military justice ) that had been abolished in 1920 on January 1, 1934. Soldiers and officials of the Reichswehr (from 1935 Wehrmacht ) were subjected to it, after the beginning of the Second World War also prisoners of war and all persons in the operational area of the German troops. The Reich Court Martial, as the highest instance of Wehrmacht justice, was the competent court for cases of high treason and treason from 1936 .

Legal position

The re-establishment of military justice on January 1, 1934 took place through the "Law on the Reintroduction of Military Jurisdiction" of May 12, 1933, the "Announcement of the wording of the Military Criminal Court Code and the Introductory Act to it" of November 4, 1933 and the "Implementing Regulations for the Military Criminal Court Code" of November 21, 1933. The substantive regulations and the procedural rules in their respective core corresponded to the international standards of the time. That changed, however, as the laws and implementing provisions were changed and expanded several times in the following years.

The legal basis for the proceedings during the Second World War was the Military Criminal Code (MStG), first enacted in 1872 for the German Reich in its new version of October 10, 1940, as well as two ordinances issued in 1938 but not published until August 1939, the War Criminal Law Ordinance (KSSVO) and the War Criminal Procedure Code (KStVO ). They gave the military lawyers "practically unlimited opportunities to take action against 'internal and external enemies'". Thus the range of punishments for numerous offenses was tightened. Before 1933 there were three offenses in which the death penalty could be recognized, the number increased to forty-four by 1944, including the new offense " decomposition of military strength " (§ 5 KSSVO). With this provision, any political utterance against the government could be punished with death. In 1991 the Federal Social Court ruled that it had been a " lawless degeneration of the death sentence practice".

With the martial law decree of the High Command of the Wehrmacht for the " Barbarossa " area of ​​May 13, 1941, the courts of war were deprived of jurisdiction against civilians who resisted or were suspected of resisting the Soviet Union of the German Wehrmacht in the eastern war zone. Instead, the "punishment" and so-called was pacification of the civilian population transferred to the respective military units, which resulted in practice terror against civilians on a large scale, so to hostage-taking , process-free mass executions and other collective reprisals, such as arson and looting . At the same time, the compulsory prosecution ( principle of legality ) against members of the Wehrmacht was lifted for assaults committed in the process, and the occupied territories were thus transformed into an almost unlawful area. The Barbarossa Decree violated the international law of war in parts and, in its essential provisions, fulfills the penal code of perversion of the law , so it was already illegal at the time of its publication. The criminal and procedural bases of the military tribunal were tightened several times during the war years through additions and implementing regulations. As a result, the practice of armed forces justice developed, according to military lawyer Hans Georg Bachmann, into "terror in legal form".

Even after the unconditional surrender of the Wehrmacht on 8 May 1945 and in captivity numerous military courts have continued their activities, some with Allied approval. The Nazi military justice was repealed by the Control Council Act No. 34 of the Allied Control Council for Germany of August 20, 1946. With the two amendments to the National Socialist Law on the Repeal of Unjust Judgments passed in 1998, in two steps in 2002 and 2009, all judgments of the National Socialist courts-martial against deserters, homosexuals, conscientious objectors, “disruptors of military strength” and “ traitors ” were declared unlawful and annulled.

Organization and scope

Reich court martial 1942 against Harro Schulze-Boysen u.

The National Socialist Wehrmacht Courts were incorporated into the military organization. In 1934, first "courts of war" were introduced as the first instance and "higher courts of war" as the courts of appeal . Appeals against judgments of the higher war courts should take place before a special senate of the Reichsgericht . From December 1, 1934, the People's Court was initially the highest authority to convict high treason and treason . By law of June 26, 1936 and the ordinance of September 5, 1936, the Reich Court Martial was finally established as the Supreme Court of the Wehrmacht. The Reich Court Martial was a court of appeal until the beginning of the war, after which it was exclusively responsible for the conviction of state security offenses .

In 1934, significantly fewer than 20 courts-martial were initially planned. The expansion of the 115,000 Reichswehr men, organized in seven divisions , into one armed forces, which at the beginning of the war comprised 102 divisions and 4.5 million men, also resulted in a considerable expansion of the military court system . In 1943 there were more than 1,000 military courts of various types in existence at the same time. The total number between 1934 and 1945 was around 1,200 to 1,300.

After the start of the war, the courts-martial were installed in all units of the Wehrmacht from about division strength and in the rear units in the occupied areas , in the army and air force as "field courts" and in the navy as "board courts". Higher war courts were located at the corps level. As early as November 1, 1939, the War Criminal Procedure Code was supplemented by the introduction of court courts .

In addition, special courts were set up, some temporarily, some permanently , which mainly served to prosecute alleged political violations by soldiers and civilians against Nazi ideology, both by soldiers and by others. From June 1943 to September 1944, according to the Fuehrer's order, there was another Senate of the Reich Court Martial, a special central court martial for political crimes that were "directed against trust in the political and military leadership" and for which a death sentence or prison sentence was to be expected. In April 1944 the “ Court of the Wehrmacht Commandantur Berlin ” was formed into a central court of the army , which was responsible for political criminal matters, corruption cases of particular importance and the decision on retrial. The “Feldgericht zbVd Lw.” (Feldgericht zbVd Lw.) Was responsible for the Luftwaffe; In September 1944, however, the Army Central Court had to surrender its powers to the People's Court due to a Führer decree. The Nazi leadership repeatedly and without hesitation disregarded the jurisdiction of the Reich Court Martial for state protection cases of military personnel, for example in the proceedings against the conspirators of July 20, 1944 or the members of the White Rose . The soldiers accused were dismissed or expelled from the Wehrmacht in order to have them sentenced by the People's Court.

On February 26, 1945, the Reichsführer SS Heinrich Himmler, in his function as Commander in Chief of the replacement army, ordered the formation of “special tribunals in areas close to the front”, whose verdicts could only be acquittal or death sentences “to quickly and effectively combat disintegration” . These should be filled with a judge and two officers as assessors. If the court lord - the respective military district commander - could not be reached to confirm the judgment, these special tribunals could simply confirm their judgment by unanimous decision and enforce it immediately in front of the troops. That meant the repeal of any constitutional procedural norms. Finally, with the Führer's decree of March 9, 1945, an additional flying court order was set up, which was accompanied by a 9-man firing squad in order to be able to enforce the sentences immediately. For example, the officers who were held responsible for the loss of the Remagen Bridge on March 7, 1945 were tried by such a court and, if they were not in American captivity , executed.

Analogous to the police in civil law enforcement, the military prosecutor's office served as auxiliary bodies , the military police, military police commandos and the secret field police (GFP), which was headed by Gestapo and Kripo officers seconded to the Wehrmacht . The main focus of the GFP's activities was initially the so-called fight against partisans and participation in the Holocaust . From about 1943 then the hunt was Deserters in the foreground, the courts martial "judgment ripe" were delivered. The military justice system also worked directly with the Gestapo in its investigations.

According to the official statistics up to the fourth quarter of 1944, the number of proceedings before German National Socialist courts-martial was around 626,000. It is estimated that the total number of cases brought up until the end of the war rose to at least 700,000, and according to other estimates up to 1.5 million. At least 30,000, together with convicted civilians and prisoners of war, a total of around 50,000 death sentences were passed against members of the Wehrmacht, at least half of which were also carried out. As early as 1939, many of the soldiers sentenced to higher prison terms came as military prisoners to be " annihilated through work " in the Emsland camps founded as a concentration camp , such as the Esterwegen concentration camp , where over 1,000 of them died.

Personnel structure

Chief Staff Judge Rudolf Lehmann in 1947 as a witness at the Nuremberg legal process

The supreme judge of the Nazi military jurisdiction was Adolf Hitler in his capacity as Commander-in-Chief of the Wehrmacht. The judges of the courts-martial were the designated commanders and commanders from division level. At the head of the Reich Court Martial, the President was a commanding general , who directed the business but did not take part in the judiciary. Military senates were formed there with presidents of the Senate at their head and a Reich War Lawyers' Office. The highest military lawyer was between 1938 and 1945 as head of the Wehrmacht legal department at OKW, the ministerial director and later chief magistrate Rudolf Lehmann .

Field and board courts as well as the higher war courts were headed by Wehrmacht officials , who had to be qualified to hold judicial office and initially held the official titles of judges of war and court judges . They could be used either as investigating officers, as prosecutors, or as judges , but not in the same trial. The judge made the decision on the respective function of the military lawyer. In addition, the judge, who was regularly a superior of the military lawyers, played a key role in the proceedings, although he was usually not a lawyer, as he decided whether to initiate or discontinue the proceedings and whether a judgment confirms has been modified or canceled. In military jurisdiction there was neither a legal judge nor a proper organizational and personal separation between the prosecution and the court. The Nazi courts-martial were therefore not courts according to today's legal understanding.

The requirements for military judges were significantly reduced in 1939 when the court courts were introduced. Any officer with the rank of captain and above could act as chief negotiator if no officer with the qualification for judicial office was available. At the "Flying Standgericht" set up in 1945 under the direction of Lieutenant General Rudolf Huebner , normal officers ultimately acted as judges.

Up to 1945 around 3,000 lawyers were active as war judges and prosecutors. Almost all of them survived the war safely. There has never been a serious investigation against them in the Federal Republic. None of the judges were convicted of perversion of justice. The few proceedings initiated before the federal German courts all ended in acquittal . Instead, many of them continued to work as judges and prosecutors after the war. In the GDR, several death sentences were imposed in the problematic Waldheim trials , for example against Rudolf Niejahr . In 1995, the 5th Criminal Senate of the Federal Court of Justice (BGH) also declared the practice of military jurisdiction as "blood justice" and noted that the lawyers involved "should have been held criminally responsible for perversion of justice in unity with capital crimes ."

Office and rank titles

On the basis of a Führer order from January 24, 1944, the “career of Wehrmacht judges in special troop service” was established and the Wehrmacht officials became officers . The official titles, which were previously based on civil justice, have been replaced by new rank titles. The designation of the ministerial officials changed accordingly .

Official title until 1944 Service rank 1944/45 corresponding civil name appropriate military rank
Judges Staff judge District Court Councilor Captain / lieutenant captain
Judge-martial (captain's rank)
Judge-martial ( major ) Chief magistrate District Judge Major / Corvette Captain
High Court Judge Chief judge / squadron judge Chief Magistrate Lieutenant Colonel / Frigate Captain
Supreme War Judge Chief judge / fleet judge about higher regional judge Colonel / sea ​​captain
Supreme Court Judge of the Service Supervision District Chief judge
(later general judge / admiralty judge) 		about district court president Major General / Rear Admiral
Reich Judicial Officer General judge / admiralty judge Reich judge
Reich war attorney Reich Attorney
Upper Reich war lawyer General staff judge / Admiral staff judge Senior Reich Attorney Lieutenant General / Vice Admiral
Senate President at the Reich Court Martial Senate President at the Reichsgericht
Ministerial Director
in the OKW 		Chief Justice General Ministerial Director
in the Reich Ministry of Justice 		General (with addition of the type of weapon)

Life path of German Nazi military lawyers (selection)

Manfred Roeder as a witness in the legal process (1947)
  • Hans Filbinger (1913–2007), staff judge, 1966 to 1978 Prime Minister of Baden-Württemberg
  • Alfred Robert Herzog (1892–1950), chief judge, executed in 1950 in the Waldheim trials
  • Hans Hofmeyer (1904–1992), Chief Staff Judge, Presiding Judge in the First Frankfurt Auschwitz Trial (1963–1965)
  • Werner envelope (1903–1992), chief judge, from 1950 judge at the Federal Court of Justice, from 1955 president of the Oldenburg Higher Regional Court
  • Erich Kallmerten (1904–1947), Chief Staff Judge , murdered by anti-fascists in the Soviet POW camp
  • Ernst Kanter (1895–1979), General Judge, until 1959 President of the Senate at the Federal Court of Justice
  • Otfried Keller (1911–2007), Chief Staff Judge, 1957–1976 President of the Marburg Regional Court
  • Alexander Kraell (1894–1964), general staff judge , lawyer in the Federal Republic
  • Erich Lattmann (1894–1984), general judge, from 1949 district judge, later senior judge at the district court Clausthal-Zellerfeld
  • Rudolf Lehmann (1890–1955), Chief Staff Judge, sentenced to 7 years imprisonment in the High Command of the Wehrmacht trial in 1948, released in 1950
  • Bernhard Leverenz (1909–1987), Chief Staff Judge, later FDP politician and Minister of Justice in Schleswig-Holstein
  • Ernst Mantel (1897–1971), judge general, 1950–1959 judge at the Federal Court of Justice
  • Hans Meier-Branecke (1900–1981), Supreme Court Judge, from 1950 President of the Senate at the Braunschweig Higher Regional Court
  • Manfred Roeder (1900–1971), judge general, prosecutor in the Red Chapel trials
  • Hans-Ulrich Rottka (1895–1979), Reich Judicial Officer , retired in 1942, imprisoned in the GDR from 1950–1956
  • Karl Sack (1896–1945), general staff judge, executed in 1945 as a resistance fighter
  • Hartwig Schlegelberger (1913–1997), Chief Staff Judge, 1961–1971 State Minister in Schleswig-Holstein
  • Eberhard Schmidt (1891–1977), senior war judge, law professor
  • Heinrich Scholz (1904–1997), senior war judge, after 1945 senior public prosecutor in Hamburg
  • Otto Schweinsberger (1904 – after 1958), General Judge, until 1958 Chief Public Prosecutor in Frankfurt / M.
  • Erich Schwinge (1903–1994), judge-martial, law professor and author on Nazi military justice

Nazi court martial (selection)

Films on the subject

Text output

  • Criminal Law of the German Wehrmacht: Military Criminal Code, Special War Criminal Law Ordinance, War Criminal Procedure Code, Wehrmacht Disciplinary Code, Complaint Code, Special Jurisdiction for Members of the SS and Police Associations, Reich Criminal Code and numerous other provisions: text output with references and subject index. Munich: CH Beck, 1943. 6th revised edition.
  • Military Criminal Code (MStG) for the German Reich, revised October 10, 1940. In: RGBl. 1940, I., p. 1347 ff.

literature

  • Rudolf Absolon (Ed.): The Wehrmacht Criminal Law in World War II. Collection of basic laws, ordinances and edicts. Kornelimünster 1958.
  • Claudia Bade, Lars Skowronski, Michael Viebig (eds.): Nazi military justice in the Second World War. Instrument of discipline and repression in a European dimension (= reports and studies by the Hannah Arendt Institute for Research on Totalitarianism . No. 68). V&R unipress, Göttingen 2015, ISBN 978-3-8471-0372-1 .
  • Maria Fritsche: Withdrawals. Austrian deserters and self-mutilators in the German Wehrmacht. Böhlau. Vienna, Cologne, Weimar 2004, ISBN 978-3-205-77181-4 .
  • Otto Gritschneder : Terrible judges. Criminal death sentences by German courts-martial. Beck, Munich 1998, ISBN 3-406-42072-9 .
  • Peter Kalmbach: Wehrmacht Justice. Military justice and total war. Metropol Verlag, Berlin 2012, ISBN 978-3-86331-053-0 .
  • Walter Manoschek (ed.): Victims of Nazi military justice. Judgment practice, prison system, compensation policy in Austria. Mandelbaum-Verlag, Vienna 2003, ISBN 3-85476-101-5 .
  • Manfred Messerschmidt , Fritz Wüllner: The Wehrmacht Justice in the Service of National Socialism. Destroying a legend. Nomos-Verlags-Gesellschaft, Baden-Baden 1987, ISBN 3-7890-1466-4 .
  • Otto Peter Schweling: The German military justice in the time of National Socialism. Processing, initiated and ed. v. Erich Schwinge . 1st edition: Marburg 1977, ISBN 3-7708-0590-9 ; 2nd edition: Elwert-Verlag, Marburg 1978, ISBN 3-7708-0619-0 .
  • Gine Elsner, Gerhard Stuby : Wehrmacht Medicine & Military Justice. Experts in World War II: Consulting doctors and experts for the courts-martial of the Wehrmacht. VSA-Verlag, Hamburg 2012. ISBN 978-3-89965-517-9 .
  • Wolfram Wette , Detlef Vogel (Ed.): The last taboo. Nazi military justice and treason. Structure, Berlin 2007, ISBN 978-3-351-02654-7 .
  • Hermine Wüllner (Ed.): "... only death can be the just atonement". Death sentences from German Wehrmacht courts. A documentation. Nomos-Verlags-Gesellschaft, Baden-Baden 1997, ISBN 3-7890-5104-7 .

Web links

Individual evidence

  1. ↑ full text
  2. ^ Reichsgesetzblatt (RGBl.) 1933, I., p. 264 , p. 921 , p. 989 .
  3. ↑ a b c d e f g h Hans Georg Bachmann: Military jurisdiction of the German Wehrmacht 1939–1945 and military service jurisdiction in the Bundeswehr since 1957 - a comparison. In: UBWV 11/2009, pp. 407–415, here: pp. 409–411 (full text on drive.google.com/file/d/0B0iCPtgel0IhWWk4b3F2OW9QeVE/view).
  4. ↑ RGBl. 1940, I., p. 1347 .
  5. ↑ RGBl. 1939, I., p. 1455 , p. 1457 .
  6. ↑ Ulrich Baumann, Magnus Koch: "What was right then ..." - soldiers and civilians before courts of the Wehrmacht. Berlin-Brandenburg 2008, p. 145.
  7. ^ BSG, September 11, 1991, 9a RV 11/90 .
  8. ↑ Felix Römer : "In old Germany such an order would not have been possible." Reception, adaptation and implementation of the martial law decree in the Eastern Army 1941/1942. In: VfZ 56 (2008), pp. 53–99, geschichte.uni-mainz.de (PDF); Text of the martial law decree (PDF) on 1000dokumente.de .
  9. ^ Lothar Gruchmann : Selected documents on German naval justice in World War II. In: VfZ 26 (1978), pp. 433–498, pp. 476 ff. (PDF)
  10. ↑ Chris Madsen: Victims of Circumstance: The Execution of German Deserters by surrendered German Troops under Canadian Control in Amsterdam, May 1945. In: Canadian Military History 2 (1993), pp. 93-113 ( http: //scholars.wlu. ca / (with download link) ).
  11. ↑ Control Council Act No. 34 of August 20, 1946.
  12. ↑ BGBl. 1998 I p. 2501 , BGBl. 2002 I p. 2714 and BGBl. 2009 I p. 3150 .
  13. ↑ a b RGBl. 1933, I., p. 921 .
  14. ↑ RGBl. 1934, I., p. 1165 .
  15. ↑ a b RGBl. 1936, I., p. 517 , p. 718 .
  16. ↑ Manfred Messerschmidt / Fritz Wüllner: The Wehrmacht Justice in the Service of National Socialism. Destroying a legend. Baden-Baden 1987, p. 49.
  17. ↑ a b RGBl. 1939, I., p. 2132 .
  18. ↑ Martin Moll (ed.): "Führer-Erasse" 1939–1945. Stuttgart 1997, p. 342f. (Doc. 255) and p. 458 (Doc. 364).
  19. ^ Rudolf Absolon: The Wehrmacht in the Third Reich. Vol. 6. Boppard 1995 (Schriften des Bundesarchivs, 16), p. 565; Olaf Simons: Central Court of the Army, Berlin (2003) on polunbi. de Database font and image 1900-1960 .
  20. ^ Rudolf Absolon: The Wehrmacht in the Third Reich. Vol. 6. Boppard 1995 (Schriften des Bundesarchivs, 16), pp. 602f.
  21. ↑ Frithjof Harms Päuser: The rehabilitation of deserters of the German armed forces from a historical, legal and political point of view with commentary on the law for the repeal of Nazi judgments (NS-AufhG of May 28, 1998). Diss. University of the Federal Armed Forces. Munich 2005, p 46 ( Online. Retrieved on March 2, 2020 . ) (PDF)
  22. ^ A b Maria Fritsche: Abduction - Austrian deserters and self-mutilators in the German Wehrmacht. Vienna 2004, p. 269 Doc. 89 ( GoogleBooks ).
  23. ↑ Klaus Geßner: Secret field police - the Gestapo of the Wehrmacht. In: Hannes Heer , Klaus Naumann (ed.): War of extermination - Crimes of the Wehrmacht 1941–1944. Hamburg 1995, pp. 343-356; Stefan Roloff (with Mario Vigl): The Red Orchestra. The resistance group in the Third Reich and the history of Helmut Roloff. Munich 2002, passim.
  24. ^ Mathias Lichtenwagner: Missing years. The locations and the network of Nazi military justice in Vienna. Diploma thesis University of Vienna 2003, p. 13f. ( PDF ); Otto Hennicke / Fritz Wüllner: About the barbaric enforcement methods of the Wehrmacht and the judiciary in World War II. In: Wolfram Wette (Ed.): Deserters of the Wehrmacht. Essen 1995, p. 74; Keyword: military jurisdiction. In: Friedemann Needy: Lexicon Third Reich. Munich / Zurich 1997.
  25. ↑ Fietje Ausländer: From Wehrmacht to Moor Soldiers. Military prisoners in the Emsland camp from 1939 to 1945. In: Osnabrücker Jahrbuch Frieden und Wissenschaft , IV / 1997, pp. 187–203, uni-osnabrueck.de (PDF); Quote: TV report Merciless Military Justice in Frontal21 (ZDF) v. November 27, 2007.
  26. ^ Norbert Haase: Chief Staff Judge Dr. Rudolf Lehmann. In: Gerd R. Ueberschär (Ed.): Hitler's military elite, Vol. 1. Darmstadt 1998, pp. 154-161.
  27. ^ Lothar Gruchmann : Selected documents on German naval justice in World War II. In: VfZ 26 (1978), pp. 433-498, ifz-muenchen.de (PDF).
  28. ↑ a b BGH, November 16, 1995 - 5 StR 747/94 .
  29. ^ Helmut Kramer : Careers and self-justifications of former Wehrmacht lawyers after 1945. In: Wolfram Wette (ed.): Filbinger: A German career. Springe 2006, pp. 99–123, kramerwf.de ; Joachim Perels, Wolfram Wette (Ed.): With a clear conscience. Military power judges in the Federal Republic and their victims. Berlin 2011.
  30. ↑ Allgemeine Heeresmachrichtungen 1944, No. 111, p. 64 ( text at google.books ).
  31. ^ Rudolf Absolon (Ed.): The Wehrmacht Criminal Law in World War II. Collection of basic laws, ordinances and edicts. Kornelimünster 1958, p. 249; Manfred Messerschmidt / Fritz Wüllner: The Wehrmacht Justice in the Service of National Socialism. Destroying a legend. Baden-Baden 1987, pp. 272f .; Lothar Gruchmann: Justice in the Third Reich 1933–1940. 3rd edition, Munich 2002, pp. 292-294.
  32. ↑ Bernd Withöft: The death sentences of the Waldheim trials. Diss. Jur. University of Vienna, 2008, p. 44f.
  33. ↑ Katja Marx: Murder in the officer's barracks . In: Die Zeit , No. 49/1991. Gerhard Mauz : Remember us with indulgence . In: Der Spiegel . No. 20 , 1992, pp. 83-89 ( online ). Karl Kielhorn: For escort. In: Karl Heinz Jahnke: Murdered and extinguished. Twelve German anti-fascists. Freiburg 1995, here: pp. XVI-XXII.
  34. ^ Claudia Bade: Research overview and perspectives. An introduction . (PDF; 16 pages)
  35. ↑ www.jura.uni-bremen.de: CV
  36. ↑ on the book see also Erich Schwinge # From 1945 , last paragraph. Review (1978) here .
  37. ↑ on the book see also Florian G. Mildenberger in: Fachprosaforschung - Grenzüberreitungen. Volume 8/9, 2012/2013 (2014), pp. 566-568.