1945: Anton Dostler, gone commando

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..

1945: John Birch, Society man

On this date in 1945, according to a fringe faction of American conservatism, the first victim of the Cold War was shot by Chinese Communists at Suchow, China, near Xi’an.

John Birch, a military chaplain proselytizing in China and an agent of the CIA’s precursor entity Office of Strategic Services, had the kind of portfolio sure to rub Mao’s boys the wrong way.

Apparently it was his personality that got him into trouble.

On recon duty days after the end of World War II, he bumped into a patrol of Red Chinese. According to Time, he failed his diplomacy check.

As the scene has been reconstructed, Birch argued violently with the Communist officer who wanted to disarm him. Birch was seized and shot after his hands had been tied. The Communists then bayoneted him at least 15 times and tossed his body on a heap of junk and garbage.

“In the confusing situation,” said [Birch’s commanding officer Major Gustav] Krause last week, “my instructions were to act with diplomacy. Birch made the Communist lieutenant lose face before his own men. Militarily, John Birch brought about his own death.”

Days after World War II — how does that square with your international Communist conspiracy? The incident was not especially notable at the time, but some elements later conceived John Birch the first American casualty of Communism during the Cold War, and in this guise he became the namesake of the John Birch Society (Wikipedia entry | homepage — evidently forward-thinking enough to have grabbed their own three-letter acronym)

Here’s candy magnate and founder Robert Welch, Jr., explaining:

Despite the young lieutenant’s credentials as a martyr of evangelical anti-Communism, the oft-loopy Society’s relationship to the mainstream conservative movement and the Republican Party it took over was never completely comfortable and eventually came to a definite sundering.

The Society soldiers on, its “Get US out of the United Nations” billboards a minor fixture of Americana from Port Angeles, Washington to this one in Ypsilanti, Michigan.

On this day..