Western Prisoners of War Tried by Court Martial for Insults to the Führer and Criticism of Nazi Germany

On 24 January 1942, British POW Daniel Mees, who had been captured in the spring of 1940, wrote in a letter to his family:

Do you remember the papers saying and depicting A. H. as a gangster leader, his men as gunmen? Well its [sic] just as they are, robbing, thieving beasts from Hades, that is the place where they are going back to as well.

The censor of the camp (Stalag XX-A, Thorn-Süd) seized the letter, and Mees had to appear in front of the court martial in Danzig on 30 July 1942. Mees admitted that A. H. meant Adolf Hitler. He tried to justify his comment by explaining that he was still angry because a guard had hit him in the stomach two years earlier, leaving him with occasionally recurring pain. Mees also claimed that he had consumed more beer than usual during the morning he wrote the letter. The judges were not impressed and sentenced him to two years in prison for the insult of Hitler and the German government, which to them revealed ‘a particularly hateful, spiteful, and lowly mentality’. Although he had made his comments in a private letter, the judges argued that he had to expect that they would become known to a larger circle of persons. ¹

The literature on German military justice has focused on the draconic punishments against German soldiers with the purpose of ensuring maximum discipline and conformity, but it has given little attention to trials against POWs. ² Some works on western prisoners in Nazi Germany mention courts martial against POWs but say little about the trials for political criticism. ³ While the vast majority of cases before courts martial for POWs concerned forbidden relations with German women, ⁴ hundreds of western POWs had to stand trial in Nazi Germany for political offenses, whether a joke about Hitler, criticism of the conditions of captivity in a letter, or a comment that Germany might lose the war. Although the laws on political offenses were drafted with Germans in mind, it was legal to prosecute foreign POWs for violating them. Like the western democracies, Nazi Germany was party to the Geneva Convention on POWs of 1929, and Article 45 of the Geneva Convention stipulates, ‘Prisoners of war shall be subject to the laws, regulations and orders in force in the armed forces of the detaining Power.’ ⁵ Given that the German military law code (§3) specified that all laws valid in Germany also applied to members of the German armed forces, this meant that POWs in Nazi Germany were exposed to the full apparatus of the repressive laws, decrees and orders that applied to German soldiers and civilians during the war. ⁶

Typically, courts martial sentenced POWs making offensive comments on the basis of three different laws: The treachery law of 20 December 1934 (Heimtückegesetz) punished insults to the Führer and the German state. Criticism of the conditions of captivity fell under §134a of the German Law Code (insult to the German army). During the war, §5 of the special war penal decree – Kriegssonderstrafrechts-Verordnung (KSSVO) – of 1939 punished defeatist comments and all other acts designed to undermine the will to resist of Germans (Zersetzung der Wehrkraft, often translated as ‘subversion’). ⁷ These laws and decrees overlapped to some extent, and German courts were not always sure which one to apply, but collectively they empowered the courts to punish all criticism of the German government and army with sentences ranging from short prison terms to the harsher penal servitude (penitentiary) and even death (under §5 KSSVO). ⁸ Although in principle the offensive remarks had to be made in public, Nazi legal practice allowed a far-reaching interpretation of ‘public’, as the trial against Mees demonstrates. The treachery law as well as §5 KSSVO ascribed a ‘public’ character to critical remarks made in private if their author had to expect that they might become public at some point. Military tribunals tried between 30,000 and 40,000 people (Germans and non-Germans) on the basis of §5 KSSVO, and civilian courts judged many more for the same offense, leading to thousands of death sentences (although to my knowledge none against a western POW). ⁹ Western POWs, with the exception of soldiers drafted in the colonies, came from democratic societies stressing the freedom of thought and expression. They had to negotiate the tension between their freedoms and the very different Nazi legal framework, which tended to become increasingly oppressive over the course of the war. ¹⁰

The courts martial were composed of three members: a qualified military judge (Heeresrichter or Kriegsgerichtsrat), who acted as chairman, and two assistants. One of the assistants had to be an officer; the other one had to be a man of the same rank as the accused –in most cases a rank-and-file soldier (§9 of the procedural regulation for German military tribunals). The judgment was decided in secret deliberation by majority vote among the three members (§62), although the presiding judge played the dominant role because he was normally the only member of the court martial with legal training. ¹¹ Being a judge at one of the courts martial of the home army, which was responsible for POWs, was not a prestigious role. Judges who were not considered harsh enough in trials against German frontline soldiers were occasionally relegated to courts martial of the home army, and they experienced this transfer as a demotion. ¹² The prosecutor (called ‘representative of the accusation’) was another qualified military justice official (usually a Kriegsgerichtsrat).

The protecting powers of the western POWs, initially the USA, later the Diplomatic Service for Prisoners of War (Scapini Mission) for the French, and Switzerland for the British and American prisoners (Belgium formed its own commission after the USA entered the war), made sure that the trials followed established laws and procedures and transmitted all notifications between the German authorities and the home governments of the POWs. The prisoners had the right to a defense attorney and a translator (Article 62 of the Geneva Convention), and the protecting powers contracted some local German lawyers specializing in POW law. In a few places, POWs with legal training acted as defense attorneys for their comrades. ¹³ Courts martial did not allow recourse to a higher instance, but the sentence had to be confirmed by the local divisional commander, and the attorney could request non-confirmation if he found that a significant factor in favor of the defendant had not received consideration. ¹⁴ In practice, the divisional commanders confirmed almost all sentences against POWs, but the High Command had the right to review them and order re-trials, which it did mostly if it considered a punishment to be too mild. Some attorneys bemoaned that there was no possibility for the POW or his attorney to refer a case to a higher judicial authority and openly criticized the High Command’s influence on military tribunals. ¹⁵ According to the legal expert of the Swiss Legation in Berlin, Hans K. Frey, even the judges often complained to him that the rigidity of the sentencing practice imposed by the higher authorities was tying their hands, making it almost impossible to consider mitigating circumstances. The judges knew that the High Command would void sentences it considered to be too mild. ¹⁶

After the trial, the prisoner returned to the arrest barracks of the POW camp where he had spent his pre-trial custody and waited for confirmation of the sentence and transport to a military prison or penitentiary. This phase, like pre-trial custody, counted toward the sentence. Most prisoners convicted after 1941 were sent to the dreaded military prison complex headquartered in the fortress of Graudenz (West Prussia; today Grudzyądz, Poland), a Wehrmacht prison earmarked for POWs. Aside from the dark and damp fortress itself, Graudenz oversaw a series of work camps nearby and in the industrial region of eastern Upper Silesia, not far from Auschwitz. POWs sentenced to penitentiary went to civilian penitentiaries, where they were generally housed on separate floors or wings. Military prisons and penitentiaries alike required inmates to perform hard labor outside the place of confinement. Although penitentiary according to German law was a harsher punishment than prison, conditions for POWs in penitentiaries were hardly worse than those for their comrades in the Graudenz complex or other military prisons, although the POWs in penitentiaries often did not get aid parcels and letters and tended to disappear from the radar of the protecting powers because they were under civilian, not military, administration. ¹⁷ Clemency pleas for an early release of convicted POWs were possible but almost always ineffective; given that the sentences became harsher over the course of the war, military justice officials were not inclined to grant POWs an early release because their original sentence had usually been comparably light. Most POWs had to serve their full sentence and were then integrated into a nearby POW camp (Stalag XX-B Marienburg for POWs in the Graudenz region, and Stalag VIII-B in Teschen and Lamsdorf for the POWs from the Upper Silesian camps).

The courts martial became increasingly arbitrary in the nervous atmosphere toward the end of the war. As the war had turned against Germany, the Nazi regime feared an uprising of POWs in conjunction with the millions of foreign laborers. ¹⁸ Already by 1939, pamphlets about POWs claimed that the subversive designs of POWs had helped to undermine the German home front in the First World War and contributed to the infamous ‘stab in the back’ of November 1918, the revolution that, according to myth, had caused the German defeat. ¹⁹ As more and more western POWs, first the French and Belgians, later also the British and Americans, worked in the company of Germans and foreign laborers, fears about rebellious POWs ‘infecting’ civilians intensified.

Neither Britain (including Canada) nor the USA had laws that would have justified punishing German POWs for criticizing the government of the detaining power. The British government watched the convictions of POWs for political offenses with growing concern. In a letter to the Swiss government from 23 July 1942, for example, the British Legation in Bern expressed its surprise:

The British authorities for their part have in no case taken either judicial proceedings or even disciplinary action against a German prisoner of war in the United Kingdom or in Canada in respect of abusive or insulting remarks against His Majesty’s Government or its leaders. … Another consideration to which Its Majesty’s Government wish to draw attention is that the German authorities, in assessing sentences, appear to fail to give due weight to the fact that a British prisoner of war owes no duty of loyalty to the government of the Detaining Power and cannot be properly punished on the basis that he has failed in his duty to that power. ²⁰

In May 1943, the British government protested against the harsh punishments and the assimilation of POWs to German civilians:

It has been pointed out on previous occasions to the German authorities that not even disciplinary proceedings are taken against German prisoners of war in respect of statements made by them against the Prime Minister or other members of His Majesty’s Government, however abusive such statements may be. Even if the German authorities, however in order to ensure the loyalty of their civilian population, would find it necessary to pass a sentence of such severity against a civilian for an offence of this nature, it is not considered that such a sentence can be justified in the case of a prisoner of war who owes no duty of loyalty to the Leader of the German Reich. ²¹

Inside Germany, the legal experts of the Foreign Office questioned the application of the treachery law and §134 to POWs, pointing out that these laws had been designed to quell domestic dissent in Germany and that criticism of the conditions of captivity hardly constituted an insult to the German army, especially in a private letter. Yet, the High Command insisted that prosecution was legitimate. ²² In a response to the British protests, the German Foreign Office therefore pointed out in January 1943 that the POWs stood under German military jurisdiction and that their trials conformed to trials against German soldiers. Given the increasingly rebellious attitude of POWs, the Foreign Office argued, harsh punishments were necessary and justified. ²³

The German courts martial did usually acknowledge that foreign POWs had no duty of loyalty to the German government and to the Führer, and therefore could be punished more leniently than Germans in similar cases. Most courts martial also recognized that the offensive statements tended to happen in a loaded context, for example when the prisoner was angry with a pushy guard or foreman. Western governments therefore stood on weak ground when challenging the convictions of POWs for political offenses even though no equivalent law applied to German POWs in British or American hands. All that the western governments could do was protest against unusually harsh sentences and violations of the articles of the Geneva Convention pertaining to judicial offenses of POWs (Articles 45–53 and 60–7). ²⁴

The first western POWs experiencing the harshness of Nazi political legislation were the French and the Belgians. Already by late 1940, several French POWs had to stand trial on the basis of the treachery law or §134a. One of them pointed out two pigs to a farmwife and said ‘Hitler and Goering’. Another prisoner complained in a letter to his wife about the dreary conditions of captivity, and mail censors picked out the letter because they found that it contained an ‘insult’ to the German army. Yet another prisoner spat at a picture of Hitler, and one of his comrades told German officers that Germany would lose the war. ²⁵ One prisoner drew a gallows in the sand while suggesting that Hitler should be hanged, and made gestures as if he would urinate on Hitler, while saying ‘Germany kaputt’. ²⁶ A French Jewish prisoner from Casablanca, in a factory in Salzburg, allegedly claimed that a division of French African soldiers was better than five German and 10 Italian divisions. The prisoner, who did not know German, denied the allegations, but two workers testified against him. ²⁷ All of these prisoners received sentences of up to eight months in military prison.

As more cases like these occurred, however, the courts martial increased the punishments in an effort to enforce stricter discipline among the POWs. When François Picaut tore a Hitler picture out of a newspaper, crumpled it up and spat on it in front of workers in Königsberg, the court martial sentenced him to one year and six months in prison in September 1941. Picaut argued in his defense that he had been seized by homesickness and rage when he saw the picture, but the court martial recognized no mitigating circumstances. ²⁸ Jean Fisse, a POW working for a farmwoman near Tübingen, was sentenced to one year and eight months in prison for insulting Hitler. In front of three 13-year-old boys, Fisse had cut out a photo of Hitler from a newspaper and hacked it to pieces with his ax. A few days later, Fisse had grabbed a photo of Hitler belonging to the boys and with a knife made a motion suggesting that one should cut Hitler’s throat. As happened frequently, German boys, who had been trained as vigilantes by the Hitler Youth, made the denunciation. ²⁹ In a similar case, the Belgian POW Omer Deryckere, working on a farm outside Hamburg, told the two daughters of the farmer that Hitler, just like Napoleon, wanted to conquer the entire world but was stupid and a liar. Deryckere also said that everything the German newspapers were printing was false, and he allegedly used a swear word (Schweinehunde) for German soldiers. The farmer’s daughters, aged 15 and 16, did not denounce him, but they shared his statements with family and friends until somebody else notified the police. Deryckere admitted everything except for the swear word against German soldiers. He explained that he felt angry because he had just received confirmation that his brother had been killed during the German attack on Belgium in May 1940. The court martial in Hamburg sentenced him to two years in prison on three counts (§134, §185 of the German law code for the insult to German soldiers, and §5 KSSVO). That he had made the remarks in front of allegedly gullible girls who would likely spread the rumors counted as an aggravating factor. ³⁰

Critical comments by POWs could easily involve the POW more deeply in forbidden statements and actions. On 20 September 1941, for example, French POW Jean Lambert had a bad morning. Lambert worked in the carpentry shop of a factory south of Berlin. When a guard woke him up at 6 a.m. as usual, Lambert refused to get up because he had worked overtime the day before and therefore claimed to have a right to sleep in. The guard left and called the foreman, who told Lambert that extra hours did not entitle a POW to work less the next day. At 7 a.m., the guard, with the help of another prisoner and the foreman, again tried to convince Lambert to get up. This time, Lambert had a fit of rage. He waved about with his arms, allegedly hitting the guard, who himself hit Lambert’s hands with the dull edge of his bayonet. While the guard and the two other witnesses were dragging Lambert to work, he yelled: ‘All Germans are swine!’ When the guard warned him that such comments could land him in front of a court martial staffed by officers, Lambert exclaimed: ‘All German officers are swine, too!’ In front of the court martial in Berlin, Lambert claimed that the guard had hit him first, and he denied having made the remark about German officers, but several witnesses, including some POWs, testified that they had heard it. For insulting the German army (§134a), he received a year in prison; for insubordination (§94 of the military law code), he received another year in prison; for threatening a superior (the guard – §89 of the military law code), he received one year and two months in prison. As was typical in Germany in the case of multiple simultaneous sentences, the three punishments were amalgamated into a prison term of two years and eight months. Luckily for Lambert, if one can speak of luck here, the court martial did not believe that he had deliberately hit the guard, which would have led to an even harsher punishment. ³¹

The hardening trend of German military justice often manifested itself in the tendency of courts martial to invoke several of the anti-subversion laws and to punish the POW separately for each act. In the spring of 1942, French POW Georges Vervoitte, for example, claimed in front of workers in a Salzburg factory that Hitler would soon be smaller than Napoleon and that the Soviet Union treated workers better than Germany. He encouraged German workers to surrender immediately should they be drafted and sent to the eastern front. The court martial in Salzburg sentenced him to six months in prison for the comment on Hitler on the basis of the treachery law, and to three years for the defeatist comments (§5 KSSVO), amalgamated into a prison term of three years and three months. ³² Marcel Haguet, working in a bakery in Hanau (Hessen), repeatedly commented that the Soviet Union would win the war and that German news reports about the war were untrustworthy. In an argument with a bakery apprentice, Haguet also said: ‘Oh, leave me alone with your Scheiß-Hitler!’ On 15 June 1942, the court martial of Kassel sentenced him to four years in prison for a combination of subversion (§5 KSSVO) and insult of Hitler (treachery law). ³³ French POW Robert Cussonneau, a student and NCO working in the Henschel tank factory in Kassel, faced a string of accusations in early 1942. Once he had placed himself in front of an anti-Semitic poster and asked the workers what they thought about it. In front of foreign and German workers, he had argued that there were still communists in Germany (he claimed ‘I know six of them in Hall One’), and he had repeatedly claimed that France had better social laws than Germany. Cussonneau had also pointed out that Hitler, by attacking Poland, had broken his promise to Édouard Daladier, the French prime minister, and suggested that German security forces would not hesitate to open fire on the workers. Cussonneau did not deny any of these statements, but he explained that the tenor of his comments had merely been that Germany was run in a more military style than France. The judges, however, considered his remarks highly subversive and sentenced him to five years in prison under both the treachery law and §5 KSSVO. They found it particularly alarming that he had made defeatist comments in an armaments factory. Clearly, he had been able to make his remarks for a while without being denounced, but when the police began to investigate they gathered a series of incriminating testimonies against him. ³⁴

Occasionally, the reputation of the prisoner or his good conduct mitigated a judgment. In December 1942, for example, French POW Paul Labaume had to stand trial because several workers testified that he had pointed to a Hitler photo in a booklet of the Nazi welfare organization Kraft durch Freude and said ‘Hitler, pig’. Labaume claimed that he had only said that Hitler was bad for France and that politics was all Schweinerei (swinishness), but the two workers confirmed their accusations under oath, and one of them also claimed that he had heard Labaume say ‘Hitler verrecke’ (death to Hitler!). ³⁵ Labaume argued that this worker had been involved in illegal trading and had made the denunciation to cover up for his own criminal activities, but the court martial sentenced him to one year and six months in prison on the basis of the treachery law. His defense attorney, Dr Heinz Melchert, however, petitioned for a milder punishment in February 1943 after hearing that Labaume had saved the life of a German worker stuck in a burning gas pipe only two days after the incident. This action, Melchert argued, proved that Labaume did not share a strong anti-German sentiment. The higher authorities agreed, and Labaume was immediately paroled and released from military prison. ³⁶

In September 1943, the court martial in Krems (Austria) sentenced French POW Jean Trébaoul to one year and six months in prison. Trébaoul was assigned to a high school in Krems. On 1 February 1943, he conversed with Aloisia Brtnik, a woman working with him. According to Brtnik, he pointed to a calendar photo of Hitler and Mussolini, saying: ‘Führer not good. Big bandit, big pig.’ In his defense, Trébaoul stated that the woman had flirted with him and that he had called her a bandit and pig while browsing through the calendar; the photo of Hitler and Mussolini had appeared by accident during the conversation. But the court martial believed Brtnik, who was of great repute and who insisted that Trébaoul had repeated his comment three times. The fact that he had made this remark just at the time when the German defeat in Stalingrad was confirmed served as an aggravating factor. Trébaoul escaped harsher punishment, however, because he himself had a reputation as a good and trustworthy worker. For this reason, the court martial assumed that he had not made the comments calculating that Brtnik would spread them. ³⁷

When reading the trial records regarding political violations at this time, one often has to wonder to what extent German witnesses read their own subversive notions into the gestures and words of the POWs (whether they shared them or not). Misunderstandings could happen easily given the prisoners’ often limited knowledge of German, and the POWs or their attorneys usually tried to use this argument as a defense. But the meanings that German witnesses projected onto gestures and statements of POWs sometimes seem to reflect their own ideas rather than what may have been meant by the prisoner. Louis Champon, for example, was talking with Italian workers about the transfer of earnings to Italy in a factory in Ludwigshafen in the summer of 1941, with French POWs and German workers nearby. According to the German witnesses, during the conversation Champon called Hitler a rascal (German: ‘Spitzbube’) and Mussolini a pig. The camp commander gave Champon only a disciplinary punishment for the statement on Mussolini (it was also forbidden to insult a German-allied army and its leaders), but his statement on Hitler landed him in front of the court martial in Mannheim. Champon defended himself by arguing that he had merely said Hitler was a youngster (French: ‘gamin’) in comparison with Marshal Pétain, who was much older. Champon stated that he did not know German and that he was misunderstood (Spitzbube includes the word Bub – a common south German word for ‘boy’). But witnesses also interpreted some of Champon’s gestures as indicating the hoarding of money, and one said that Champon had used the word capitalist. In this working-class environment, his words and gestures were clearly read as an anti-capitalist message. The court martial took into account the possibility of miscommunication and sentenced Champon to only four months in prison, even though the judges did not believe his claims that he knew no German because he had clearly said the word ‘Spitzbube’ during the hearing. ³⁸ In a similar case in late July 1941, Louis Chastenet told German workers that he had heard from a German who had listened to Swiss radio that Hitler had been given a drug that made him lose his mind, and that several high officials, including Goering and Foreign Minister Ribbentrop, had left the country. The court martial in Aachen believed that he had invented the stories and sentenced him to six months in prison. Only two months after the flight of Hitler’s deputy Rudolf Heß to Britain, however, the allegations could have been in the back of the mind of the witnesses and denouncer, who may well have given Chastenet’s comments a more pointed message than he himself intended. ³⁹

Many French POWs got into trouble when they participated in discussions with German workers about war events and the outcome of the war. For example, Léon Guillemin became upset when two German workers at the end of August 1941 announced the impending collapse of the Soviet Union and pointed out that many other Europeans, including Frenchmen, were fighting on the German side. Guillemin called these Frenchmen traitors and praised de Gaulle, Stalin and the Jews. About Hitler, he commented ‘pfui’ – ‘yuck’. This conversation, which happened at a Daimler-Benz factory south of Berlin, cost Guillemin one year in prison. ⁴⁰ In the fall of 1943, French POW Albert Leuliet told two workers in Lorraine that Germany and Italy would be finished within two months, that the Germans were barbarians, and that after the war they would have to work as slaves for the USA. Leuliet also predicted an armed conflict between the SS and German civilians. He first denied the accusations and claimed that he did not know enough German to have made these comments. But then he admitted everything, claiming that he had been angry because the two workers had always talked about a German victory and had stolen some potatoes from him. The workers countered that he had stolen the potatoes himself and they had merely taken them away from him. The court martial in Forbach considered his comments as such a serious case of §5 KSSVO that the death sentence could be invoked if he was a German citizen. Given that he was French and that the seizure of the potatoes by the two workers had angered him, however, the judges sentenced him to ‘only’ three years in penitentiary on 11 March 1944. ⁴¹

British POWs were initially less integrated into the German war economy and therefore had less contact with civilians than the French and Belgians. At first, they seem to have received only disciplinary punishments for critical comments. In July 1942, the German Foreign Office assured the Swiss government that the courts martial were still treating the question of whether the political criticism of British POWs ought to be considered as a disciplinary offense or as a crime with great leniency (disciplinary offenses carried a maximum of 30 days’ confinement inside an arrest barrack on the camp site). ⁴² But in late 1941, British POWs also began to appear in front of courts martial for political criticism. ⁴³ On 26 October 1941, for example, Henry Wearing wrote to the parents of his fiancée in London telling them that Germans from age eight to 80 were terribly oppressed and had to work hard with insufficient food. This would be the fate of England, too, if Adolf (Hitler) and Hermann (Goering) would ever rule there. A censor stopped the letter, and Wearing came in front of the court martial in Danzig. He claimed that he had only made the comments in order to alert the authorities to the poor supply of his work detachment. The judges dismissed this excuse but had him checked out by a psychiatrist because they thought that he might be mentally unbalanced. The psychiatrist concluded, however, that Wearing was normal, and the court martial sentenced him to six months in prison on 27 January 1942. As usual, it claimed that subversive remarks even in private letters contributed to the spreading of rumors and therefore had a public character. ⁴⁴ This judgment, together with a sentence against POW Thomas Dunne, who had written some critical passages in his diary, triggered a protest note from the British government, but the German Foreign Office replied that these trials were legal under German law and pointed out that Dunne had shared his diary entries with other prisoners. ⁴⁵

In a case similar to Lambert’s, British POW Albert Parkes, working in a mine near Kassel, was punished after a fight that escalated. Parkes was angry because a foreman had exchanged the nice French shoes that he had received in a Red Cross aid parcel for a low-quality German pair that did not fit him. He vented his anger to the German worker Hoffmann, claiming that a German civilian was now wearing the nice shoes. Hoffmann answered, ‘You are crazy’. This remark led to a verbal fight that escalated during work in the mine. When Hoffmann exclaimed: ‘You wanted the war. When Poland was done with, the Führer offered peace!’ Parkes, in broken German, called Hitler a ‘damned swine’ (verdammter Schweinehund) which needed to disappear. A fistfight broke out. During the court martial, Parkes admitted having insulted Hitler but denied having said that he needed to disappear. Still, the court martial in Kassel sentenced him to two years in prison. His attorney argued that Hoffmann had provoked Parkes and that he had been irritable that morning because of the exchange of shoes, but to no avail. The court martial felt that an exemplary punishment was necessary to ensure discipline among the prisoners. ⁴⁶

Christopher Conley, a sailor from Liverpool captured in Crete in May 1941, injured himself while playing soccer in a camp and was sent to a military hospital in Wollstein (today Wolsztyn, Poland) in early 1944 together with several comrades. When they arrived, two guards performed a routine inspection of their luggage. While waiting, Conley spotted a photo of Hitler in the guard room. In front of the guards, he showed his comrades a tattoo of Churchill he had on one arm and a tattoo on the other arm that showed Hitler and Churchill in a boxing match, with Hitler losing. He used the ‘f word’, which the court martial transliterated in German as ‘focken’ (probably reflecting his British accent). The guards did not understand English, but they reported Conley. In front of the court martial in Posen, Conley claimed that it was all just a joke and that the ‘f word’ was very common among prisoners. The court martial did not believe him and sentenced him to six months in prison for undermining the will to resist (§5 KSSVO) because he had exposed his tattoos to the guards. His attorney challenged the sentence, claiming that Conley had made a joke and had certainly not intended to undermine the will of the guards to resist, but to no avail. ⁴⁷

Given that many British POWs were assigned to camps in the former German–Polish border area and in parts of annexed Poland, their political offenses often occurred in the presence of Poles or people with mixed German and Polish heritage. These settings produced peculiar dynamics insofar as the guards were wary of contacts between POWs and Poles, and also insofar as some Polish–German persons may have felt a special need to demonstrate their loyalty to Germany by denouncing the prisoners. On 1 September 1942, for example, four British POWs and six Polish laborers were working on a railway line near Danzig. During the noon break, the Poles began to play cards. When one of the British POWs wanted to join them, the German foreman told him brusquely to keep his distance. This triggered a confrontation between the British POWs and the foreman. Albert Preston, the POW who knew German best, yelled at the foreman: ‘Hitler is crazy and you [he used the informal Du] are just as crazy.’ The foreman claimed that Preston also said: ‘Hitler wants to win the war and does not give the Poles anything to eat. He is too dumb to win the war.’ The court martial in Danzig sentenced Preston to six months in prison because of the first comment, which one of the Polish workers confirmed. The judges ignored Preston’s alleged second comment because they felt the evidence was insufficient. ⁴⁸

David Brown, a lawyer who had been captured in Dunkirk, worked together with three Polish Germans in a sawmill in Turawa (eastern Upper Silesia) in the fall of 1943. When he complained about lunch (blood sausage, a common meal in eastern Germany and Poland), the worker Duda asked him to eat it anyway. Brown then took two pennies out of his pocket and threw them down in front of Duda, saying in broken German: ‘Here you go. In Germany you guys are working for Hitler for that much money.’ Brown announced, moreover, that by Christmas 1943 the Soviets would be in Upper Silesia and that all the POWs would be home. One of the workers, Woitzik, angrily answered that everything was different in Germany now: the Jews were no longer selling out Germany, as they had allegedly done in 1918, and Germany was not like England, where Jews were running everything. Brown then said something about Hitler being a Jew. One of the workers, probably Woitzik, denounced him. In front of the court martial, Brown explained that he became angry when Woitzik said England was run by Jews but claimed that he had merely replied: ‘Do you think I am a Jew? I am no more Jewish than Hitler.’ The court martial in Neisse, deliberating on 15 May 1944, did not believe him, but it also found Woitzik not to be trustworthy. The two other witnesses testified merely that Brown had asked whether Hitler was a Jew. But the court martial considered even the question an insult and sentenced Brown to five months in prison for it. ⁴⁹ Brown had clearly touched a nerve when he implied a comparison of 1943 to 1918, the year of the German defeat in the First World War (this was a common analogy at the time). ⁵⁰

Thomas Kewin was working in the presence of other British POWs and some Polish and Ukrainian laborers in a factory near Auschwitz on 29 April 1944. During a break, he took a piece of chalk and drew a caricature of Hitler with, according to the note of accusation, ‘shamelessly emphasized sexual organs’ onto the door of an iron container. A crane operator saw it and denounced him. The court martial was secret because the judges argued that the case involved German security concerns, perhaps as it occurred in a factory belonging to the Auschwitz complex. Kewin had previously received a disciplinary punishment for trading shifts with somebody else, but the records do not reveal whether he had learned something about conditions in some Auschwitz camps and, if yes, whether he pointed to this knowledge as a motivation for his act. ⁵¹ Because of the secrecy rule, the British government did not receive a detailed judgment. Kewin’s attorney was present at the trial in front of the court martial in Kattowitz. He told the Swiss legation that because of the secrecy rule he had been hindered in his work and could not reveal any details, but he pointed out that the sentence (six months in prison) was comparatively mild. ⁵²

Even in the relative isolation of the officer camp Colditz, where POWs had almost no contact with civilians, a few British POWs also faced charges for having insulted the German army or state. Squadron Leader Paddon, for example, simply complained in a letter to the camp commander that a guard had stolen his entire kit after recapturing him following an escape. The court martial tried Paddon in absentia because he had fled again and sentenced him to four months in prison for insulting the German army by accusing the guard of theft (§134). During a collective escape attempt of British officers dressed up in German uniforms, a guard shot one of the POWs, prompting an eyewitness, Lieutenant Hunter, to exclaim: ‘German murderer’. A guard arrested Hunter and led him away after a brief scuffle. The court martial charged him with insult of the German army, refusal to obey and resisting arrest. Alan Campbell, the British officer defending Hunter, managed to blunt the two latter charges, but the court sentenced Hunter to six weeks in prison mostly for the offensive statement. The higher authorities, however, ordered a re-trial because they considered the sentence too mild, and Hunter received two-and-a-half months in military prison. Following the same incident, in a corridor of the castle, one British POW yelled at the guard who had likely fired the shot ‘Cold-blooded murderer’ and ‘German murderer’. The guards arrested Lieutenant Bissel as the main suspect. Bissel received four weeks of arrest, but Campbell protested against the sentence because the court martial had heard none of the witnesses of the defense. He succeeded in obtaining an acquittal for Bissel after a retrial because other POWs testified that Bissel had not been alone as the prosecution witnesses claimed. It was therefore impossible to prove that he had been the one who yelled the offensive remarks. ⁵³

American POWs were latecomers in Nazi Germany, with the majority captured after D-Day. But even before, some Americans also violated the German anti-subversion laws. William Kilpatrick, for example, arrived in Stalag III-B in Fürstenberg on the Oder, southeast of Berlin, in May 1943. On 26 June 1943, he received two days’ arrest because he had left the camp without authorization and traded objects with a Serb POW. Kilpatrick, who already had a disciplinary record in the US army for insulting an officer, did not take the punishment well. In his arrest cell, he adorned the poster listing the prison rules with a caricature of Hitler and various remarks praising Poland and France, and asking that God may punish Germany and the Germans. Under the caricature, he scribbled: ‘Adolph [sic] Hitler, the Fuck-Up in Europe’. Kilpatrick was immediately charged with violation of the treachery law. Because he had drawn the caricature and the remarks in a place where guards and other prisoners could see them, they were considered to be a public statement. The court martial of Frankfurt on the Oder sentenced him to four years in prison on 5 September 1943, mostly because of the caricature and its caption. This extremely harsh sentence was intended to be a deterrent to other prisoners at a time when the camp authorities were becoming increasingly worried about losing control over the POWs. There had been a series of trials against American POWs insulting foremen in the Fürstenberg camp, and just a few days before Kilpatrick’s arrest, the commander had warned the POWs that insulting the German army and its leaders would be prosecuted and severely punished. This fact served as an aggravating circumstance in Kilpatrick’s trial. The American State Department, through the mediation of the Swiss Legation in Berlin, protested vigorously against the harshness of the sentence. Kilpatrick’s defense lawyer also objected. The punishment was indeed so extraordinarily harsh that the higher German authorities ordered a retrial. During this retrial on 25 May 1944, in front of the same court martial, Kilpatrick was sentenced to only one year in prison, which meant that he was released a few weeks later because he had already spent nearly a year behind bars. ⁵⁴

German courts martial and witnesses became highly nervous toward the end of the war. Fearing a mass uprising of foreign workers and POWs, perhaps together with German supporters, the Nazi authorities warned civilians to be on guard. ⁵⁵ Guards and camp commanders saw their authority threatened because of numerous escapes, and outrage at the increasingly deadly bombing raids contributed to a more hostile mood specifically toward British and American POWs. ⁵⁶ Many POWs received harsh convictions during the last year of the war based on flimsy evidence and frivolous denunciations. The courts martial often refused to call a witness of the accusation for cross-examination and instead relied on a written statement by the witness or the police protocol of a denunciation. ⁵⁷ The judges knew that the German High Command expected quick and severe sentences even if the evidence was dubious. In the summer of 1944, for example, the German civilian Hans Weigert encountered a group of French POWs working in a quarry south of Berlin and started a conversation with François Méchenet, who was supervisor of the group (since October 1941, French POWs were often working under the supervision of a POW and without a guard). ⁵⁸ Later, Weigert went to the police and claimed that Méchenet had said to him that the Russians would be coming soon and that the Germans would then need to split stones. He also accused Méchenet of having said that Hitler was a liar and charlatan who had promised peace but attacked one country after the other. In front of the court martial of Berlin on 25 July 1944, the prosecutor demanded three years of penitentiary because he saw the remarks as a vile effort to spread defeatism among the German population. Méchenet himself denied having made the defeatist comments and claimed that Weigert had asked him why he was not working himself and told him he was fat and that working would do him well. According to Méchenet, this had prompted an argument during which Weigert had misunderstood him. Méchenet’s attorney pointed out that Weigert had no business dealing with the POWs (in fact, communications with POWs not strictly necessary for work were forbidden to civilians) and that nothing would have happened had he left Méchenet alone. The attorney also pointed out that Méchenet spoke very little German, and that Weigert could easily have misunderstood him. The judges, however, believed the accuser and claimed that the statements Méchenet had allegedly made needed to be punished severely, although they recognized the explanations of his attorney as a mitigating circumstance and sentenced Méchenet to two years in military prison, not penitentiary. This was still a harsh sentence based solely on the word of a random civilian who had likely provoked the prisoner. ⁵⁹

In another case, Australian POW Roy Guthrie was sentenced to 15 months in prison by the court martial in Breslau on 11 January 1945 for having said to his foreman ‘Hitler is a damned pig’. As so often happened, the POW was angry at being summoned to work harder. Guthrie defended himself by claiming that he had only said that Hitler and Germany are all ‘Schweinerei’ (swinishness), but the court martial considered this comment enough to justify a harsh sentence. ⁶⁰ Another Australian, Arthur Clemensha, was luckier. He had allegedly said to a foreman while cutting trees (after being admonished to work harder): ‘You German pigs: You will all be hanged after the war!’ But witnesses confirmed merely that he had called the foreman a pig. The court martial in Breslau therefore concluded that the only proven and prosecutable offense constituted an insult to the foreman, but it had no power to judge the POW given that the foreman had not sued him for insult. Clemensha was acquitted. ⁶¹

The same court martial was much harder on Samuel Doyle, an American prisoner in Stalag VIII-C in Silesia, who also had to stand trial following a confrontation with his guard. The guard, Skroch, submitted a written statement accusing Doyle of having said ‘Hitler, pfui’ before spitting, and of having called Skroch a ‘f … ing bastard’. When the court martial met, on 10 November 1944, the prosecutor requested a sentence of 20 months in prison for these two insults – the first against Hitler (treachery law) and the second against Skroch (§185 of the German law code). Doyle argued, however, that Skroch had asked him to pack some macaroni in a bag for him while Doyle was loading a truck. Doyle claimed that he had refused to cooperate in the planned theft and that Skroch had then made a revenge denunciation. Two other American POWs testified that they had also been asked to steal macaroni for Skroch. Doyle’s attorney, Dr Adler, asked that Skroch be cross-examined in court to establish a clearer link between the proposed theft and his argument with Doyle, but the judges refused, pointing out that Skroch had already testified under oath and that Doyle’s remarks needed to be punished independently of Skroch’s illegal request. The court martial sentenced Doyle to one year for the insult to Hitler and three months for the insult to Skroch, amalgamated into 14 months in prison. ⁶²

Bronislaw Sleczek, a Pole who served in the French army, suffered even harsher punishment in a trial where the denouncer should also have been cross-examined. Sleczek was working for a farmwoman in Killingen (Württemberg). In the fall of 1944, the farmwoman told the local police that Sleczek had repeatedly claimed that German airplanes were worse than Allied planes because they were propelled by motorcycle engines, that Hitler had committed a crime when he attacked Poland, and that everybody saying ‘Heil Hitler’ should be punished with penitentiary. He had allegedly also said that all Germans, except children, were guilty. Sleczek was identified as a lazy worker with a strong hostility to Germany, which had apparently not gone unnoticed, and his bad work performance may have been a factor motivating the denunciation. He denied the allegations, but the court martial in Ludwigsburg believed the farmwoman and sentenced him to three years of penitentiary on the basis of §5 KSSVO, a very harsh sentence. Although the remarks had occurred in private, the court martial believed them to have had a ‘public character’ because Sleczek had to expect that the farmwoman might spread the defeatist ideas in the village. ⁶³ French POW lawyer Stéphane Delattre, who was present at the military tribunal, pointed out that the court martial had rejected urgent requests of the defense attorney to call in the woman for cross-examination. Delattre believed that the harsh judgment was motivated by hatred of Poles and potentially by a desire of the court martial in Ludwigsburg, which had a reputation for mild sentences, to make an example of harshness to please the High Command. ⁶⁴ As in the case of Doyle, the court martial simplified and sped up the procedure by not allowing the denouncing witness to appear and be cross-examined.

A particularly tricky case involved American POW Alan Citron from Philadelphia. Citron’s plane was shot down over Gelsenkirchen in western Germany on 14 October 1943 during a bombing raid, and he was severely wounded. After spending half a year in a military hospital, he was sent to Stalag XVII-B near Vienna. In a letter to his father, dated 12 May 1944, Citron complained vigorously about the conditions of captivity and the brutality of the guards, who shot and killed prisoners trying to escape and let Soviet POWs starve to death. He claimed that most Germans were ‘a gang of dirty, brutal beasts’ and that the only solution was ‘to sterilize all the boches’ [a derogatory French expression against Germans]. The camp’s censorship office seized the letter, and the camp commander on 6 September 1944 sentenced Citron to six months’ imprisonment through a punishment order (Strafverfügung), a sentence that commanders could pronounce without a hearing as long as it did not exceed six months in prison. Punishment orders had been a contested international issue: they were permissible under German military law, but the Geneva Convention required a full trial with notification of the protecting power and a defense attorney for any punishment of a POW exceeding 30 days (Articles 60–2). ⁶⁵ According to German military law, however, the soldier receiving a punishment order had the right to challenge it within three days of receiving it and thus to bring the matter in front of a regular court martial. Most POW representatives advised their comrades to only challenge a punishment order if they had strong exonerating evidence because the courts martial tended to pronounce a harsher sentence. Citron, who was understandably upset that he had not been heard about the case, believed that he had good arguments for a more lenient sentence and decided to challenge the punishment order.

In front of his court martial in Vienna on 29 November 1944, Citron explained that he was agitated when he wrote the letter because he had heard that an Italian prisoner had been shot while trying to escape and that the German guard had let him bleed to death. His defense attorney, Dr Josef Sirowy, argued that Citron could not have assumed that the letter would have a public character and that he was potentially still under the influence of the trauma of his plane crash and injury when he wrote the letter. Sirowy requested a psychiatric exam because Citron said that he had been ‘not of sound mind’ when writing the letter. The prosecutor, by contrast, argued that Citron had made calculated remarks designed to vilify Germany, that he must have known that his letter would be read by a censor in addition to his family, and that he had hoped to dent the censor’s morale. The prosecutor therefore requested that Citron be punished not on the basis of §134a (insults to the German army) but for §5 KSSVO (undermining the will to resist), which could lead to much harsher punishment. The prosecutor requested one-and-a-half years in penitentiary. Sirowy countered, very sensibly, that the higher authorities had immediately confirmed the original punishment order (six months in prison) and that no aggravating facts had come to light during the hearing of the court martial. On the contrary, Sirowy claimed that Citron’s admission to have been ‘not of sound mind’ should lead to a milder judgment.

The court martial, under the direction of judge Dr Habernal, sentenced Citron to two years of penitentiary, an extremely harsh sentence and one of the rare cases in which a court martial went beyond the prosecutor’s request. The judges argued that Citron, a journalist in civilian life, had meant his remarks to be used as vicious enemy propaganda and that they were therefore clearly intended to damage the German war effort. The judges suggested that it would even be possible to consider his act as an offense against §91 of the German law code (damage to the Reich and High Treason), which allowed still harsher punishment than §5 KSSVO. The judges dismissed Sirowy’s claims about Citron’s limited ability to reason because they claimed that he would not have been released from the military hospital if he had not been fully healed and also because they found him to be lucid and clear in court. Sirowy lodged an appeal against the judgment (allowed within 48 hours), but he then decided, in consultation with the Swiss Legation, to withdraw it because he feared the judges might otherwise invoke §91. The minimum sentence under §91 was five years in penitentiary, and the punishments had been sharpened on 10 October 1944, making it easy to pronounce a death sentence. Nazi judges were usually allowed to invoke harsher versions of laws even for acts committed before the revisions were published. ⁶⁶

What made this case so dangerous was a new piece of ‘evidence’ that did not appear in the sentence but that Dr Sirowy discovered in casual conversations with members of the court martial: they believed Citron to be Jewish because he had said that his father’s first name was Samuel and that he himself was a journalist. One of the judges had commented informally to Sirowy that he ‘looked slightly Jewish’. In other words, the court martial had acted out of anti-Semitic motives, imagining that it was facing a stereotypical ‘Jewish journalist’ who had tried to spread atrocity stories to fan anti-German propaganda. ⁶⁷ The Geneva Convention outlawed discrimination based on race or religion, which explains why the sentence did not refer to this factor, but it surely influenced the judges. Luckily for Citron, however, the judgment came so late in the war that he likely did not have to serve his sentence in a penitentiary, which would have been a harrowing and dangerous experience for a Jew. His army service card indicates that he was liberated in 1945 while listed as belonging to the transit camp for aircrew in Grosstychow (eastern Pomerania). He may have been on his way to a penitentiary when the Soviet offensive, starting in January 1945, created chaos and triggered a large-scale evacuation of POWs. ⁶⁸

Although punishment for political offenses became increasingly harsh, the courts martial generally followed legal form. As several judges noted, POWs received milder sentences than German civilians in similar cases because the courts martial recognized that they could not be held to the same standards of political conformity and loyalty as German citizens. In the few cases of glaringly harsh sentences that led to foreign protests, the High Command did indeed order a re-trial, and the punishment became much milder as a consequence. The hardening trend of the courts martial, required by the higher authorities, mirrored a similar trend in trials against German civilians and soldiers. The legality of the courts martial therefore could hardly be disputed. As was the case with the flood of harsh court martial sentences for amorous relations to German women, western governments could only grind their teeth and protest against certain excessive punishments. The Geneva Convention of 1929 legitimized the application of German law to the POWs regardless of whether an equivalent for certain offenses existed in the enemy states.

Among the primary motives of the German POW authorities for punishing seditious comments of POWs was concern for the discipline of the prisoners. As the German Foreign Office pointed out in its note to the British government in January 1943, a stricter prosecution of subversive comments was considered necessary in reaction to the increasing rebelliousness of POWs. Angering the guards and challenging the rules (‘goon-bating’, as the British prisoners called it) had indeed become a common pastime in many enclosed camps. The growing concern about prisoner escapes and a possible mass rebellion toward the end of the war also justified harsher discipline and control. ⁶⁹

A second motive was the desire to prevent the spread of potentially contagious propaganda to civilians. The seditious comments and jokes of POWs might undermine German morale and fan the rebellious mood of foreign laborers. Since the anti-subversion laws, especially the KSSVO, had been designed with the aim to prevent the seditious tendencies that seemed to have led to revolution in 1918, it was logical that they applied to POWs working in the company of civilians. The French and Belgians experienced this first because they (except for officers, a tiny minority) were quickly integrated into the German wartime economy. ⁷⁰ The British POWs, while still relatively isolated from the German working population, seem to have faced only small disciplinary punishments for violating the political laws (the camp commander could pronounce disciplinary punishments without a trial and without notification of the protecting power). Once they worked much more outside the camps, however, they, too, appeared in front of courts martial in growing numbers. Most offensive comments of western POWs coming before courts martial had occurred in the working world in the presence of German and non-German civilian witnesses. Occasionally, as demonstrated, the critical comments of POWs may have reflected topics of discussions with German workers, and it is plausible that seditious comments traveled not only from POWs to civilians but also in the other direction.

The harsh German punishment of POWs for political offenses inspired revisions in international POW law. In an analysis of the problem published in 1948, Hans K. Frey, the former legal expert of the Swiss Legation in Berlin, criticized the equation of a POW with a soldier of the detaining power’s army because certain laws and obligations valid for the one make no sense for the other. A POW insulting the leader or army of the detaining power, for example, does not violate an oath of loyalty that he performed. Such acts, Frey argued, therefore should be treated leniently. ⁷¹ Similarly, the French POW lawyer Stéphane Delattre, who had defended many of his comrades in front of the court martial of Ludwigsburg, argued that captivity cannot oblige the POW to adopt the patriotism of his capturer and that the POW remains ‘committed to the combative power of his country and the morality of his people’. ⁷²

Frey and Delattre both submitted memoranda to the ICRC committee drafting the new Geneva Conventions in 1949. Article 87, section 2, of the Third Geneva Convention of 1949, which deals with POWs, made precisely the distinction that they had demanded:

When fixing the penalty, the courts or authorities of the Detaining Power shall take into consideration, to the widest extent possible, the fact that the accused, not being a national of the Detaining Power, is not bound to it by any duty of allegiance, and that he is in its power as the result of circumstances independent of his own will. ⁷³

In his commentary on the Geneva Conventions of 1949, Jean Pictet, Director for General Affairs of the ICRC, revealed that Article 87 also took into account the psychological distress of the POW, who usually becomes a captive of the enemy against his will:

This is important because it may have serious consequences on the accused’s mental state which may be assimilated to certain extenuating circumstances recognized in penal legislation. Thus, anger or violent pain are recognized in penal law as extenuating circumstances when they are the result of unfair provocation or an undeserved insult. Similarly, after prolonged captivity a prisoner of war may be in a state of ‘deep distress’, both moral and physical. ⁷⁴

Pictet’s explanations echo the pleas of many German POW lawyers in the Second World War.