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The Dostler Case 22 CASE No. 2 THE DOSTLER CASE TRIAL OF GENERAL ANTON DOSTLER, COMMANDER OF THE 75th GERMAN ARMY CORPS UNITED STATES MILITARY COMMISSION, ROM E, 8 Tll-1 2TI1 OCTOBER, 1945 Legal Basis o f the Jurisdiction o f the Commission. Shooting o f unarmed Prisoners o f War. Hague Convention No. IV of 1907. Scope o f the Geneva Prisoners o f War Con­ vention of 1929. Plea o f Superior Orders. Anion Dostler was accused of having ordered the shooting of fifteen American prisoners of war in violation of the Regulations attached to the Hague Convention Number IV of 1907, and of long-established laws and customs of war. A plea was made to the jurisdiction of the Commission by his Counsel, on the grounds, first, that the accused was entitled to the benefits of the Geneva Prisoners of War Convention of 1929 in the conduct of his trial, and, secondly, that the Commission had not been legally established. These arguments, and the plea of superior orders later put forward on Dostler’s behalf, were rejected, and he was condemned to death. A. OUTLINE OF THE PROCEEDINGS 1. THF. COURT The Tria! was conductcd by a Military Commission appointed by command of General McNamey, consisting of the following: Major-General L. C. Jaynes (President), Brigadier-General T. K. Brown, Colonel H. Shalcr, Colonel James Notcstein, Colonel F. T. Hammond, Jr., Major F. W. Roche (Judge Advocate), 1st Lt. W. T. Andress (Assistant Judge Advocate), Colonel C. O. Wolfe (Defence Counsel), and Major C. K. Emery (Assistant Dcfcncc Counsel). In the conduct of its proceedings, the Commission was ordered to follow the provisions of circular 114 of Headquarters, Mediterranean Theatre of Operations, 23rd September, 1945, entitled “ Regulations for the Trial of War Crimcs.”( l) 2. THE CHARGE AND SPECIFICATION Anton Dostler was charged with violations of the laws of war in that, as commander of the 75th German Army Corps, he, on or about 24th (') See Annex II, pp. 113 IT. PURL: https://www.legal-tools.org/doc/18b20e/ TIIE DOSTLER CASE 23 March, 1944, in the vicinity of La Spezia, Italy, ordered to be shot sum­ marily a group of United States Army personnel consisting of two officers and 13 enlisted men, who had then recently been captured by forces under General Dostlcr, which order was carried into execution on or about 26th March, 1944, resulting in the death of the said 15 members of the United States Army. 3. THE PLEA TO THE JURISDICTION OF THE MILITARY COMMISSION At the beginning of the trial the Dcfcncc presented a plea to the juris­ diction of the Military Commission to try the accuscd. Article 63 of the Prisoners of War Convention of 1929, it was stated, provided that a sentence shall only be pronounccd on a prisoner of war by the same tribunals and in accordancc with the same procedure as in the case of persons belonging to the armed forces of the detaining Power. This provision was also set out in para. 136 of the American Basic Field Manual, Rules o f Land Warfare. By virtue of the provisions of the Constitution of the United States, the Geneva Convention had become part of the United States Municipal Law(*), and Article 16 of the American Articles of War (an Act of Congress) pro­ vided that oificcrs of the United States Army shall be triable only by General and Special Courts-Martial, and in no case shall an officer, when it can be avoided, be tried by officers inferior to him in rank. From this the Dcfcncc argued that the proper tribunal to try the accuscd would have been a Court Martial. (Trial before Courts Martial affords to the accuscd a higher degree of safeguards than trial by a Military Commission.) The Prosecution replied that the provisions of the Geneva Convention with regard to the trial of prisoners of war, which the Dcfcncc had put forward, pertained to ofTenccs committed by a prisoner of war in captivity, and d»d not pertain to ofTenccs committed ugainst the Law of Nations prior to his becoming a prisoner of war. If the accuscd, being a prisoner of war, had struck a guard. Counsel for the Dcfcncc would be absolutely correct; the accuscd would have had to be tried by a Court Martial, for that would have been an oflTcnce against the American Articles of War, but in the present case he was being tried for an ofTcncc, not against the Articles of War, but against the Law's of War, for which a Military, Com­ mission might be, and had been for more than a hundred years, the proper method of trial. Counsel for the Prosecution quoted from Winthrop s Military Law and Precedents, p. 835, enumerating the classes of persons who in United States law might bccomc subject to the jurisdiction of Military Commissions, and expressly naming individuals of the enemy’s army who had been guilty of illegitimate warfare or other ofTenccs against the laws of war. The Prosecutor also referred to paragraph 346 (c) of the Basic Field Manual, Rules of Land Warfare, according to which, in the event of clearly established violation of the laws of war, the injured parly may legally resort to the punishment of captured individual offenders. He further quoted from paragraph 7 of the same Manual which enumerates the three types of military tribunals exercising military jurisdiction, namely: (a) Courts 0) Counsel could also h a« pointed out that Congressional Legislation had made the Convention part of United Slates Law. PURL: https://www.legal-tools.org/doc/18b20e/ 24 the dostler case Martial, (b) Military Commissions, and (c) Provost Courts, and provides that, in practice, olTcnders who arc not subjcct to the Articles of War, but who by the Law of War arc subjcct to trial by military tribunals, arc tried by Military Commissions or Provost Courts. The Dcfcncc said in reply that Winthrop had stated the law valid at the time when his book was written, and that this law had been amended when ‘ the United States ratified the Geneva Convention of 1929 and its provisions bccamc part of the law of the land. Two further arguments were then put forward by the Dcfcncc. The first was to the cflcct that the Commission had been set up by order of an American General, whereas the forces operating in that theatre were Allied forces of several different nationalities under a British Commanding General, Field Marshal Alexander. Counsel claimed that the accuscd was " entitled to be tried at least by a Court or a Commission appointed by the Comman­ ding General of the theatre of operations in which the offcncc allegedly was committed,” since he was “ charged with being a war criminal rather than committing an offcncc against or which is peculiar only to the forces of the United States.” • Secondly, the Dcfcncc argued that, should the foregoing argument be regarded as unsound, the appointment of the Commission was in any case invalid sincc, as far as the accuscd knew, no order had been given by the President of the United States appointing, or authorising the appointment of, the Commission, whereas its appointment required to be carried out cither by the President or by some person legally authorised in the matter. Counsel quoted Article 38 of the Articles of War, to the cffcct that the President “ may by regulations . prescribe the procedure . in eases before courts-martia', courts of inquiry, military commissions, and other military tribunals . .” He admitted that this provision conccrncd rules of procedure and evidence, but claimed that the implication was that the President was also the authority who should establish the procedure whereby Military Commissions were to be appointed. The Prosecution claimcd in reply that by. long-standing practice, custom and even laws of war the Supreme Commander in the field had the authority to appoint a Military Commission. The belligerent injured by the offence was the United States, and the Supreme Commander for all American Forces in that theatre was General McNamcy, who had appointed the Commission and had referred the case to it. Under the provisions of Rules o f Land Warfare, it was the injured belligerent who could bring the captured before a Military Commission, and Counsel therefore doubted whether Field Marshal Alexander would have had authority to appoint the Commission and refer the ease to it. Finally, Article 38 was purely permissive in character, not mandatory, and there was nothing in the Articles of War which took from General McNamcy the power to appoint the Commission and to make rules for its procedure. The Commission overruled the pleas of the Dcfcncc. PURL: https://www.legal-tools.org/doc/18b20e/ THE DOSTLER CASE 25 4. THE CASE FOR THE PROSECUTION The Prosecution claimcd, by virtue of the witnesses and evidence produced, lo be able to establish the following facts :— On the night of 22nd March, 1944, two officers and 13 men of a special reconnaissance battalion disembarked from some United States Navy boats and landed on the Italian coast about 100 kilometres north of La Spczia. The front at the time was at Cassino with a further front at the Anzio beach head. The place of disembarkation was therefore 250 miles behind the then established front. The 15 members of the United States Army were on a bona fide military mission, which was to demolish the railroad tunnel on the mainline between La Spczia and Genoa, On the morning of 24th March, 1944, the entire group was captured by a party consisting of Italian Fascist soldiers and a group of members of the German army.
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