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Bodies among the more than 2,000 seen by the U.S. military as it liberated the main Dachau concentration camp. Courtesy of the USHMM.


“Earthholes” at one of the Kaufering camps, satellites of the Dachau concentration camp, set aside mainly for Jews. Courtesy of the USHMM.


Inside an “earthhole.” Courtesy of the USHMM.

3

The Dachau Trial under U.S. Army Jurisdiction

Dachau

In March 1933, shortly after Hitler’s ascent to power in Germany, the Nazis opened the concentration camp known as Dachau, which included an entire ring of concentration camps administered from Dachau and encircling it. It remained under German control until the surrender of the main camp to Allied military forces on April 29, 1945. The main Dachau camp was built to accommodate 8,000 inmates; the entire complex was built to hold about 20,000 inmates. At the time of surrender, the main camp held about 30,000 inmates and the entire complex held about 65,000 people.1

The original purpose of the camp was to detain politically undesirable persons, mainly political dissidents and those seen as potential threats to Hitler’s regime. While Jews were among those brought to Dachau during the first five years of its existence, it was in their role as communists, socialists, or other opponents of National Socialism. Jews as Jews were not detained at Dachau until the immediate aftermath of Kristallnacht in November 1938, when thousands of Jewish men were arrested in Germany and sent to various concentration camps including Dachau.

Dachau was not a killing center in the same sense as Auschwitz, Chelmno, Treblinka, Sobibor, Belzec, and Majdanek were. Unlike those camps in German-occupied Poland where most, if not almost all, persons brought there were immediately murdered, persons brought to Dachau were detained for hard labor and brutal exercise. In another sense, however, Dachau was a more brutal killing center. Though not as efficient, its inmates were overworked, overcrowded, and underfed, resulting in a slow death for thousands through starvation and disease. As the war was coming to an end, the Germans began evacuating camps about to be overrun by the Allies. As a consequence, they funneled inmates of those camps to camps in Germany proper, including Dachau. This resulted in even more overcrowding and the further spread of disease. Incredibly, on cross-examination of one of the prosecution witnesses, counsel for the defendants suggested that the Allies should be blamed for the overcrowding since successful Allied advances, liberating other camps, exacerbated the suffering of inmates at Dachau.2

Once the Second World War began in 1939, and certainly after the German invasion of the Soviet Union in June 1941, Dachau’s inmate population took on an international face. At the time of liberation, about half the total population came from Eastern Europe; the balance comprised persons from central and southern European countries such as Italy and Germany. Jews were a plurality, constituting slightly over a third of the total.3 Generally speaking, Jews were confined in Dachau’s satellite camps, mainly camps named after the nearby town of Kaufering, where the conditions “were considered the worse from the standpoint of overcrowding, malnutrition, disease and brutality.”4 For example, the beds at Dachau eventually held three men to a bed, while housing, if it could be called that, at the Kaufering subcamps was even more crowded.5 The allocation of food, well below the caloric and nutritional minimum at Dachau, was even less in the Kaufering subcamps. Thus, it is not surprising that more Jews were murdered at Dachau than any other group of prisoners.

Civilians constituted over 90 percent of the Dachau population. Most of the military inmates were Soviet POWs sent to Dachau in the year after the invasion of the Soviet Union in June 1941. A majority of these men were executed by shooting; some were hanged. The unfortunate Soviet men brought to Dachau were singled out and suffered a higher murder rate than any other group. Nevertheless, because their numbers were smaller, the total killed did not approach the number of Jews killed. This mix of civilian and military inmates was of legal significance in the proceedings that followed because the principles of international law that apply to civilian populations—the vast bulk of Dachau inmates—differ from those that apply to prisoners of war.

The Liberation of Dachau and Summary Executions

Dachau’s liberation was a foregone conclusion to the Nazi hierarchy. With Soviet troops advancing from the east and the Americans and British from the west, it was just a question of time before German control of Dachau and its inmates would fall into Allied hands. Consequently, on April 14, 1945, Heinrich Himmler, head of the SS, directed that Dachau be destroyed and its 30,000-plus surviving inmates be murdered to preclude the survival of witnesses to its horrors. Fortunately, by mid-April 1945, the administrative machinery of the Third Reich was sufficiently disrupted and chaotic so that this directive was not carried out to completion. Jews, however, were singled out and constituted the bulk of the 7,000 Dachau inmates selected, on April 26, for a death march to the Tegernsee to the south. Those not able to walk, either at the inception of the march or during the march, were shot on the spot. Others died of exposure and starvation along the way. Survivors were liberated at the Tegernsee a week after leaving Dachau.6

American troops liberated Dachau on April 29, 1945. As the American troops arrived at Dachau,7 they passed an abandoned train on the tracks leading to the main camp. The train contained over 2,000 bodies of emaciated, skeletonlike victims who had been sent from Buchenwald to Dachau in the days before. Most died from starvation and disease; on some the eyes were open, even in death; all contributed to a mosaic of pure horror.8 It was ghastly even for the American liberators; battle-tested soldiers who had lived with death for weeks, if not months or years. As one account of the introduction by American liberators to Dachau observed:

If ever the American soldier needed confirmation of the reasons why he was in uniform, why he was at war, why he was required to put his life on the line day after day, enduring all hardships and discomfort and danger, it was contained in these thirty-nine railroad cars. Here was the very embodiment of the evil Nazi regime that he had sworn to vanquish. As they cautiously approached, the familiar, sickening stench of death greeted them…. In each railroad car were piles of rotting human corpses—a total of 2,310 men, women and children, to be exact, either totally naked or partially clad in blue and white striped concentration camp uniforms. Mainly Poles, most of them had starved to death while being moved from Buchenwald in an effort to keep them from falling into the hands of the approaching Allies. Many others had been killed by their sadistic guards; still others had died while fighting among themselves during the trip. A few with enough strength to attempt escape had been shot down by the SS guards or brutally beaten with file butts, their brains oozing from shaved, emaciated skulls. An order from SS head Heinrich Himmler to destroy evidence of atrocities had gone unfulfilled.9

The gruesome scene that prefaced the U.S. Army entry into Dachau set in motion the events that followed. Nothing inside the camp mitigated the initial reaction provided by the train; indeed, seeing thousands upon thousands of living persons emaciated almost to the point of death augmented the anger of the liberating soldiers.

Accounts of what happened on entry to Dachau and its surrender vary, and an attempt to resolve these conflicting accounts is beyond the purview of this chapter. It is clear, however, that the four SS men who came to the American liberators with a white flag of surrender were shot and, if not killed immediately, shot again in the head to ensure their deaths. Other SS men were rounded up and lined up against a wall where they were machine-gunned. Once again, those who survived the machine-gunning were shot in the head, perhaps by Dachau inmates who had been given access to guns. Some SS men were turned over to the inmates. For example, one SS medic, who reportedly had castrated an inmate, was shot in the leg to immobilize him and then left to inmates who pummeled him to death with shovels. One of these inmates was the castration victim.10 Others were handed to inmates who literally tore them apart. Estimates as to the number of SS men killed following liberation range from a few dozen11 to about 550.12 There is some evidence that among the SS killed in this manner, several had just been assigned to Dachau and thus could not, under any conceivable theory of criminal liability, be responsible for its horrors.13

On May 2, 1945, shortly after the liberation of Dachau, the assistant inspector general of the Seventh Army, Lieutenant Colonel James Whittaker, at the direction of the Seventh Army’s commanding general, conducted an inquiry into the events surrounding Dachau’s liberation. In his June 8, 1945, report, he found that SS men at Dachau had indeed been killed without justification by named members of the liberating troops. He also noted that Lieutenant Howard Buechner “violated his duty both as a physician and a soldier [by] … ignoring the possibility of saving the wounded but still living prisoners who had been shot.”14 Whittaker’s report was filed with General George S. Patton, the head of the Seventh Army and the military governor of Bavaria (where Dachau was located), who simply ignored the report and took no action.15 Forty years later, Buechner wrote a book about the killing of the SS men by the American military16 and in 1992, forty-seven years after liberation, the Whittaker report was made public.17 The number of SS men summarily executed and the question as to whether their execution was at least understandable, though clearly not lawful, remains open.

The Setting for the Trial

Historically, the military has the power to try persons in military courts under a number of circumstances, including warfare conditions where there is no functioning local civilian government.18 That was certainly the case in Germany in the months after its surrender. The International Military Tribunal (IMT) tried the major Nazi defendants at Nuremberg, and the United States Military Tribunals presided over twelve different trials at Nuremberg after the IMT trial. Those were not the only trials, however. Acting under the same authority, the United States established U.S. Army courts, which sat in Dachau and presided over trials of 1,672 persons in 489 different proceedings from 1945 to 1948. Six of these 489 proceedings related to the administration of six concentration camps: Dachau, Buchenwald, Flossenbürg, Mauthausen, Nordhausen, and Muehldorf. This chapter deals with the trial at Dachau, focusing on the Dachau concentration camp and its satellites.19

The substantive law for these military tribunals is (1) violations of the laws and (2) usages of war, both concepts established by various treaties and practices. An initial requirement is that the conduct alleged to have been criminal occurred during an actual war since the laws and usages of war are operative only during an international conflict. Thus, it is not surprising that the Dachau case charge sheet (the equivalent of an indictment) alleges that, between January 1, 1942 (after Pearl Harbor), and Dachau’s liberation on April 29, 1945, the forty named accused acted pursuant to a common design and participated in the commission of certain criminal acts.

There were two charges. The first alleged that as part of this common design the defendants subjected the civilians of nations then at war with Germany to cruelties and mistreatment including killings, beatings, tortures, starvation, abuse, and other indignities. The second alleged the same conduct—cruelties, mistreatment, etc.—with respect to members of the armed forces of nations then at war with the German Reich who had surrendered and were unarmed prisoners of war in the custody of the German Reich. The technicalities of the charges required the prosecution to prove both that the defendants acted during wartime and that their acts were directed against either civilians or prisoners of war who were other than of German nationality.20

The tribunal consisted of eight army officers, seven colonels, and one brigadier general. Brigadier General John M. Lentz presided. Lieutenant Colonel William Denson, a Harvard Law School graduate, headed the prosecution team. Three captains joined him: William Lines, Richard McKusky, and Philip Heller.21 Three officers were assigned to specific defendants: Major Maurice McKeon represented fourteen defendants, including the lead defendant, Commandant Martin Weiss. Captain John May represented twelve defendants and Captain Dalvin Niles represented the remaining fourteen.22 Some of the difficulties with such mass representation by three defense lawyers will surface later in this chapter.

The trial began on November 15, 1945, and ended on December 13, 1945. It followed the usual contour of both military and civilian trials in the United States: preliminary motions, opening statements by both sides, direct and cross-examination of prosecution witnesses, direct and cross-examination of defense witnesses, closing arguments, and then a verdict by the eight officers constituting the court. The prosecution and defense called hundreds of witnesses and most of the forty defendants testified.

Preliminary Motions, Opening Statements, and the Prosecution’s Case

There were several facets to the preliminary defense motions. First, counsel argued that the defendants were prisoners of war and as such were entitled to a trial following the rules of the prosecuting power, which was not the case here. The prosecution responded that the accused were charged with violating the laws of war and, as such, were alleged criminals, not entitled to the protections afforded prisoners of war. The defense rejoinder was that as members of the Waffen-SS, they were part of the German army. The prosecution reiterated that the allegation that the defendants violated the laws of war trumped any status they might otherwise claim.23 The judges rejected the defense’s argument and noted that no legal rights would be denied the accused.24

The defense then asked that the charges be dismissed on two different legal grounds. First, the laws of war required that those injured by violations of those rules had to be nationals of a country other than that of the defendants: the charge made no reference to the nationality of the victims. Second, simply alleging that forty defendants acted pursuant to a common design, as the charge did, was too vague. These motions were denied as well.25 Finally, the defense lawyers asked the judges to sever the trials of the forty defendants on the grounds that their various defenses were antagonistic—a legitimate ground for a severance request in a conventional criminal case—requiring separate trials for each defendant.26 Conceding there were many defendants, the prosecution expressed confidence in the ability of the court to properly assess the evidence. The court denied the defense motion.27

The prosecution’s opening statement in the trial was short, covering barely two pages of transcript.28 Its first witness, Colonel Lawrence Ball, was a medical officer who arrived at Dachau on May 2, 1945, three days after its liberation. The defense immediately objected to his testimony, noting that the underlying charge was a common design to violate the laws of war from January 1, 1942 to April 29, 1945, the date of Dachau’s liberation. The defense claimed that no accused could be held accountable for the status of the camp at a time when he had no responsibility over it.29 The objection was patently absurd; camp conditions in the period immediately after liberation could easily lead to an inference as to the conditions just a few days, if not weeks and months, earlier. Obviously, evidence that on May 2, a Dachau inmate was on the verge of death by starvation and disease, weighing less than one-half the inmate’s normal weight, could justly lead to an inference (1) that the inmate was not the picture of health three days earlier and (2) that his condition came about while the defendants had responsibility over the camp. Nevertheless, the objection, coming at the very inception of the prosecution’s case, must be lauded since it was symptomatic of the vigorous nature of the defense and the extraordinary effort made by defense counsel on behalf of their clients, concededly operators of a vicious and inhumane killing machine.

The prosecution proceeded at two levels: an overview, which dealt with the general population of Dachau and how it was treated, and then the behavior of individual defendants. What follows are the facts established by many of the prosecution witnesses, the general thrust of which was not denied by any of the defendants. Their defenses, as will be seen, consisted not in a denial of the general conditions at Dachau, but rather that they were powerless to do anything other than what they did, since they were simply following orders. It was a repeat of the legal defense the Nazis first raised on trial in 1943 at Kharkov, and echoed again and again in subsequent prosecutions of Nazi defendants, even the high-ranking major war criminals before the International Military Tribunal at Nuremberg. In some instances of particularly horrid brutality, the defendants simply denied their involvement.

Meticulous records the SS kept showed that approximately 250,000 persons were “processed” through Dachau from its inception to its liberation, the vast bulk of whom were processed after the beginning of the Second World War.30 As noted earlier, Jewish prisoners were usually confined in the satellite camps, principally the Kaufering camps, where living conditions were the worst and the largest number of lives was lost. While the facilities at Dachau consisted of aboveground housing, actual buildings, the living facilities in the Kaufering camps were below ground with a covering over the entry hole. The defendant Otto Foerschner, in charge of the Kaufering camps towards the end of Dachau’s use, testified that the inmates lived in “earthholes.”31 Kaufering inmates slept on planks, not beds of any sort, and usually used their shoes as pillows.32 Not surprisingly, therefore, the death rate among Jews was the highest, approaching one in seven inmates during the seven months before liberation.33

Prison blocks built for 400 persons regularly held 800 to 1,200 prisoners during the last months. Sometimes, 2,000 were quartered in accommodations built for 400. Often three persons had to share one bed, really just a cot, and an unwashed blanket, not infrequently embedded with fecal matter from widespread dysentery.34 Clothing was entirely inadequate and the limited supply of shoes was given to those who could work so that disabled inmates were forced to stand barefoot in snow and sleet. Not surprisingly, washing facilities were horrendous: there were eight latrines to accommodate 300 to 400 prisoners, many of which were inoperable in the winter. Two sinks were meant to serve 800 inmates. As a result, dysentery, tuberculosis, and typhus were rampant and no steps were taken to prevent the spread of contagious diseases.35

The daily ration for inmates was designed to starve them to death. Breakfast consisted of a half-liter of synthetic coffee; the midday meal was made up of three-fourths to one liter of “watery soup,” which occasionally contained cabbage leaves or rotten potato peeling; and the evening meal consisted of a slice of bread and a thin slice of sausage, cheese or margarine, and a liter of soup. Put together, the maximum daily caloric content of these meals was between 500 to 700 calories, on rare occasion reaching 1,000 calories. According to prosecution witness Dr. Franz Blaha, a Czech physician who worked at Dachau towards the latter part of its existence, sawdust replaced some of the flour in the bread, rendering the overall diet even more void of caloric and nutritional value. The workday of those given these minimal amounts started at four thirty in the morning with a roll call, and ended late at night, with eleven to thirteen hours of physically taxing labor in between.36 It is a further barometer of the aggressiveness of assigned defense counsel that they objected to Blaha’s testimony on the ground that as a Czech, he was a citizen of a country not at war with Germany. The objection was overruled.37

A large number of frightening discipline devices were used by the SS guards. These were invoked for the slightest pretext or for no pretext at all. Many of these torture methods were interwoven with severe weather conditions, whether cold, snow, or rain. A representative, though definitely not complete, list of what Dachau prisoners were regularly exposed to, includes:

1. The “twenty-five”—an inmate’s feet were locked in place, the inmate bent over, and twenty-five lashes with a whip were applied to the prisoner’s buttocks; more, if the prisoner failed to keep count as the punishment was administered or even at the whim of the SS individual administering or ordering the punishment.

2. Hanging by the wrists for an hour to an hour and a half while being beaten. In a situation where simply surviving can be defined as heroism, one instance emerges that, for want of a better term, can be called heroism plus. One of the inmates, Bodigan Krajewski, was born in that part of Poland that was German at the time of his birth—presumably before the creation of Poland in 1918. One of the defendants directed Krajewski to designate himself as a German by birth. Krajewski refused, saying it would bring dishonor to him, that he was a Pole by birth, not a German. Krajewski was then subjected to whipping, while hanging by the wrists, again and again, but maintained his refusal to state he was German. The torture ended without Krajewski having relented.38

3. Solitary confinement for days in a dungeon without food or water.

4. Standing in a cell about the size of a coffin not high enough to permit erect standing but too confined to permit resting in a position of comfort.

5. Forcing an inmate to hold a lit cigar in the palms until it burned out completely—called euphemistically the “human ashtray.”

Three additional methods went beyond discipline and were designed instead to end in death.

6. Hanging, sometimes with a device so that the choking effect would begin once a prisoner loosened his muscles.

7. Shooting.

8. Medical experiments. These will be discussed in detail with reference to the defendants Weiss and Schilling.39

Finally, before turning to some of the individual defendants, we note the ubiquitous trains and their major role in the killing process, representing one of the primary symbols of the Holocaust. Dachau was at both ends of the process by which trains were used to murder and weaken those in the custody of the Third Reich. Persons sent by train to Dachau for confinement were cramped into brutally inhumane conditions and kept as such longer than many could possibly tolerate. By the time the trains arrived at Dachau, many had died from suffocation, hunger, thirst, or some combination of these horrors. Similarly, persons were sent from Dachau, usually to Auschwitz, for extermination. These involved comparable conditions, but now for inmates on the verge of death. Dachau inmates knew full well that a transport to Auschwitz, many hundreds of miles away, meant almost certain death. Since it was usually the sick and disabled who were sent, resistance was impossible.

It would be impossible in these pages to deal with the evidence as to each of the forty Dachau defendants. With a view to providing as broad a perspective as possible, we have chosen to look at the evidence relating to four defendants: Martin Weiss, commandant at Dachau; Dr. Klaus Schilling, responsible for malaria experiments; Josef Jarolin, an SS officer responsible for discipline; and Emil Mahl, a kapo.

Specific Defendants

Martin Weiss: Commandant

Weiss had a long history at Dachau. From 1933 to 1938, he was in charge of technical issues at the camp such as electrical power, heating, etc. From 1938 to 1940, he was adjutant—second in command. For the next two years he was commandant of smaller concentration camps, returning to Dachau is September 1942, where he stayed as commandant until November 1943. To some, Weiss was known as “the good commandant,” an image central to his defense.

Forgotten Trials of the Holocaust

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