1945: Heinz Eck, U-Boat commander 1938: Robert Lee Cannon and Albert Kessell, the first gassed in California

1945: Anton Dostler, gone commando

December 1st, 2009 Headsman

On December 1, 1945, German General Anton Dostler was shot by the American military at Aversa, Italy, for war crimes.

Gen. Dostler readied for execution, from the U.S. National Archives. Click for larger image, or click here for the post-execution photo.

Specifically, General Dostler was condemned for having ordered the summary execution of American saboteurs who had been taken behind enemy lines.* Dostler was the first German general tried by an American military commission, and the first put to death for war crimes.

And his sentence did not sit well with all.

There had been a group of German saboteurs captured in the United States during the war who had themselves been executed (after becoming the subject of Supreme Court landmark Ex parte Quirin). Here, a mirroring act on the German side brought a death sentence for its (supposed) author.

Dostler’s scenario therefore raised interesting questions of war crimes law, jurisdiction … and politics.

The essential legal difference between the German saboteurs and the OSS men shot at La Spezia was that the latter were found to have been taken in uniform. If uniformed, they were entitled to prisoner of war status; if not, then a summary execution might have been (however repugnant) permissible.

It seems to be generally agreed, and even conceded by Dostler’s defense, that the saboteurs were indeed in uniform, though the notes of the trial are rather vague on the point; there’s an intriguing indication that the defense disputed the notion that the captive saboteurs’ uniform had the necessary “fixed distinctive sign recognizable at a distance.” (Time said that “they wore no insignia, had turned their field jackets inside out.”)

In a do-over, Dostler’s defense might have dug very deep into what met the Geneva Convention’s definition of a uniform.**

For the Germans, however, the saboteurs’ fate was decided by Hitler’s notorious Commando Order, inflicting immediate death on any enemy personnel (uniformed or not) captured behind German lines.†

Understandably, then, Dostler’s counsel seems to have been much more interested in pursuing the “superior orders” defense, and did so with gusto: in this early landmark trial, it was an as-yet untested strategem even though the Allied Powers had decided as a matter of policy not to protect potential war criminals on that basis. Not only was the Führerbefehl at work in general, but Dostler had kicked this specific decision upstairs to the office of Gen. Albert Kesselring, which had insisted upon the executions (to the point of directly phoning the fortress which held the Americans to ask why they weren’t dead yet).

Dostler defense attorney Col. Claudius Wolfe appeared to strike a chord with the tribunal’s career military officers in his closing summation, impressing upon them the danger to military order or to their own persons of establishing a precedent that subordinates can be held accountable for illegal orders from above.‡

We won the war this time, but no one knows who will win the next time. We might lose and then you gentlemen might find yourselves sitting where this man is now sitting…

If we find this man guilty because of political pressure or because he lost the war and is in our power, we might as well not have won the war. (New York Times, Oct. 12, 1945)

But a more immediate precedent was at stake: the many imminent war crimes trials including the Nuremberg proceedings. Many of those would never get off the ground if a “superior orders” plea could work for someone as high-ranking as a general — or if the first war crimes trial out of the gate resulted in an acquittal.

A son of one of Dostler’s defense team makes a hotly-stated case for the general here; some factual errors (e.g., the “Roosevelt administration”) detract from the piece, but his recollection of the backstage machinations as related by his father are fascinating if true.

Video of Dostler’s execution is available, in its original silent cut.

* A description of the attempted operation, with helpful maps, is here (pdf). Coincidental — but perhaps informative for the Third Reich’s decision-making apparatus — was the fact that the La Spezia saboteurs were captured on March 24, 1944, the very same date as a reprisal mass execution in Rome for a partisan attack the day before that had claimed 33 Germans.

** Here (pdf) is a review of the current legal terrain around the “uniform” issue, significantly shaped by World War II. Executive summary: commanders should give awfully wide latitude to hostiles wearing less-than-standard uniform unless said hostiles are clearly using their wardrobe as a ploy to get the drop on your guys.

† Actually, the text of the Commando order directed that enemy “commandos” should without quarter “be exterminated to the last man, either in combat or in pursuit” (a “no quarter” order being illegal itself, but not relevant here); but, that those who somehow managed to be captured should be handed over to the SS. German officers seem to have understood, probably accurately, that the high command simply wanted them dead and wasn’t fussy about distinguishing the circumstances. Dostler’s guys (per the Oct. 13, 1945 London Times) contended that Hitler’s citation in the Führerbefehl of Allied atrocities made the German policy in reality a Geneva Convention-legal reprisal order.

‡ A German officer down the chain of command, Alexander zu Dohna-Schlobitten, actually refused to sign the execution order for the Americans because — yes — the order violated the Geneva Conventions. The Wehrmacht sacked him, but did not prosecute him, for his scruples.

Part of the Daily Double: Lesser War Criminals.

On this day..

Entry Filed under: 20th Century,Capital Punishment,Death Penalty,Execution,Germany,History,Italy,Milestones,Notable Jurisprudence,Occupation and Colonialism,Political Expedience,Ripped from the Headlines,Shot,Soldiers,U.S. Military,USA,War Crimes,Wrongful Executions

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7 thoughts on “1945: Anton Dostler, gone commando”

  1. Paul L. says:

    In wartimes, especially in a declared war like WWII, anyone captured out of proper uniforms will be subject to trial and punishment. The article got it correct that the OSS personnel were caught wearing proper uniforms and such, they were still entitled to POW status. The Germans who caught them could clearly see that the OSS men were legitimate targets because their proper uniforms indicated that they were Americans (Germany’s enemy in WWII). Dolster was aware that the OSS men were in American uniforms and not only ordered the execution, but signed the death warrant himself.

    You can ONLY execute soldiers or civilians who are captured wearing a disguise AFTER they were put on trial first to determine whether they’re guilty of espionage or not for whatever reason. If you get too many people disguising themselves as civilians or enemy soldiers, you can’t tell who’s a legitimate target and it will invite retribution against civilians or even their own guys, especially during combat (and possibly lead to friendly fire incidents too). Such activity has to be discouraged as possible and the only way to silence spies, who have higher chances of being armed with potential information about the enemy, is by executing them.

    For Dolster, that’s not the case here. The OSS men’s uniforms showed that they belonged with the American military which easily allowed the opposing army to see the difference between valid targets and innocent people.

    The 1907 Hague Convention IV Laws and Customs of War on Land stated two provisions:

    Article 29 – “A person can only be considered a spy when, acting clandestinely or on false pretences, he obtains or endeavours to obtain information in the zone of operations of a belligerent, with the intention of communicating it to the hostile party. Thus, soldiers not wearing a disguise who have penetrated into the zone of operations of the hostile army, for the purpose of obtaining information, are not considered spies. Similarly, the following are not considered spies: Soldiers and civilians, carrying out their mission openly, entrusted with the delivery of despatches intended either for their own army or for the enemy’s army. To this class belong likewise persons sent in balloons for the purpose of carrying despatches and, generally, of maintaining communications between the different parts of an army or a territory.”

    Article 30 – “A spy taken in the act shall not be punished without previous trial.”

    Article 2 of the 1929 Geneva Convention in Relative to the Treatment of Prisoners of War stated that: “Prisoners of war are in the power of the hostile Power, but not of the individuals or corps who have captured them. They must at all times be humanely treated and protected, particularly against acts of violence, insults and public curiosity. Measures of reprisal against them are prohibited.”

    Anyone captured out of proper uniforms will be subject to trial and punishment but not commandos wearing proper uniforms because putting them on trial is also illegal and would make it no different than uniformed military personnel in the open battlefield. Uniformed military personnel are covered under international law and they are still entitled to POW status after throwing down their weapons and surrender to the opposing army completely.

    Doslter know fully well about the consequences that executing U.S. commandos in proper uniforms would violate international law yet he did it anyways. He chose lust and power over what’s right and wrong. His only pathetic excuse in the war crime trials was “I just following orders, an order is an order.” If you chose to go along with your leader’s orders knowing that it would violate international law, you’re just as guilty as them. As the last paragraph of the article noted, many German officers, especially Alexander zu Dohna-Schlobitte, refused to execute Allied commandos in proper uniforms because they knew it was morally wrong and in violation of international law. Dolster had made 100% immoral choice to execute the OSS men within his powers despite the fact his colleagues begged him not to. Dolster got his award at the end!

  2. S says:

    A Nazi general who obeyed a madman who constantly gave arbitrary death orders and caused the death of millions capriciously, deserves execution. He suffered far less than millions of others murdered slowly or brutally by his military.

  3. Kevin M. Sullivan says:

    Gordon–We lost a lot of people pulling other people out of the Fire Hitler started all over Europe. We lost a lot of people fighting the Japanese. The Japs and the Germans were evil regimes, and you worry about a Nazi general who committed a war crime being wasted? Wash out your headgear.

    1. Candy says:

      Genera Dostler wasn’t a “Nazi General”. He was a regular German army officer who was never a member of the Nazi party.

      General Dostler was following “Hitler’s Commando Order” which required the execution of all captured saboteurs. He didn’t take the initiative and it wasn’t his will to execute the 15 American captives. If he had not ordered the execution of the 15 American captives. he would have died a whole lot earlier.

      It’s called “Victor’s Justice”. His REAL crime was to be on the losing side.

  4. EDG says:

    Sorry Gordon,
    Next time we let the Nazis have your country.

  5. gordon jameson says:

    the scum bastard americans who do they answer to ? no one but their time is coming, soon it will be the turn of the chines to rule the world, lets see what the big mouth brain dead wankers do then

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