JUDICIAL DECISIONS INVOLVING QUESTIONS OF

INTERNATIONAL LAW

GERMAN WAR TRIALS1

SUPREME COurt at LeiPZIG

JUDGMENT IN THE CASE OF KARL HEYNEN

Rendered May 26, 1921

IN THE NAME OF THE EMPIRE

In the criminal case against Karl Heynen, master cooper, of and born in Barmen on 22 June, 1875, for crimes and offences contrary to §§122, 55, 1, 121 Military Penal Code, and §74 Imperial Penal Code the Second Penal Senate of the Imperial Court of Justice at a Sitting in public on 26 May, 1921, at which there took part as Judges

The President of the Senate Dr. Schmidt and the Justices of the Imperial Court, Dr. Sabarth, Dr. Paul, Dr. Schultz, Dr. Kleine, Hagemann, Dr. Vogt.

As officials of the Public Prosecutor's Department.

The Oberreichsanwalt, Dr. Ebermayer and Dr. Feisenberger, Attorney for the State.

As Clerk of the Court.

Risch, Official,

after oral evidence.

The accused is condemned to ten (10) months' imprisonment on fifteen charges of ill-treating subordinates, and on three charges of insulting subordinates, and on charges of having treated subordinates contrary to the regulations; in other respects he is acquitted.

The detention during the enquiry is to be taken into account in the sentence passed.

The costs of the proceedings, in the cases in which the accused is condemned, are imposed upon him and in the cases, in which he is acquitted, they are to be borne by the Imperial Treasury.

The Treasury is to bear also in the first-mentioned cases all expenses, including the necessary expenses of the accused.

By Right

'British Parliamentary Command Paper No. 1450.

REASONS FOR THE DECISION

I. The accused served 1895-1897 with the 145th King's Infantry Regiment and in the year 1901, after training with the 138th Infantry Regiment, was promoted non-commissioned officer; he was called up in the autumn of 1914 as non-commissioned officer with the second Münster Landsturm Battalion. He took part in the campaign in Russia, was wounded on 29th December, 1914, on the Pelizza, then returned to Münster and was posted for a period of 7 months to the prisoners of war camp at Rheine. His camp commandant at that time, Deputy Officer Radenberg, has testified to his great zeal, absolute trustworthiness and faultless conduct. There has been no complaint of any kind of excess towards the Russian prisoners of war, who were placed under him and were occupied with agricultural work.

At the beginning of October, 1915, he was recalled to the first Münster prisoners' camp, in order to take over the command of the new prisoners' camp to be organized at shaft V of the "Friedrich der Grosse" mine near Herne. He received as his sentries a draft of 1 Lance Corporal and 12 Landsturm men, most of whom had only received their necessary training during the war.

There were placed under him 240 prisoners of war, of whom about 200 were English and 40 were Russians. They were to work in a colliery. This was kept secret from them, probably because it was foreseen that they might be unwilling to undertake such work. In fact they believed, from what they had been told, that they were to work at a sugar factory.

On 13 October, 1915, accused with his detachment of sentries and the prisoners left Münster for Herne. He had received no further orders than that he had to see to it that the prisoners undertook the work intended for them; he was to make his own arrangements; until his arrival in camp in Herne he was to keep silent about their place of destination and the work intended for them.

On the way already discontent became apparent among the prisoners, because they saw that they were going to be made to work in a mine. They vented their discontent by such utterances as "Nix Minen" and thus let it be understood that they would not work in a mine. It was impossible for the accused to make himself understood to the prisoners as he had not been allotted an interpreter.

II. After arrival at the railway station at Herne, the accused first endeavored to find amongst the English prisoners a man, who understood German sufficiently to be able to act to some extent as interpreter for his fellow prisoners. Such a man he found in the English prisoner Parry, who, however, at that time, had but little knowledge of German. Parry understood him only partially. In consequence the accused, according to Parry's statement which is considered to be credible, himself got angry and so irri

table that he called him "Englischer Schweinhund" (Dog of an Englishman). He thus insulted this prisoner of war who, by being placed under his command, had become his subordinate. At this time the accused was endeavoring to carry out his duties. Therefore he is guilty of a breach of §121 para. 1, of the Military Penal Code and deserves increased punishment under §55, No. 2, of the Military Penal Code.

III. In consequence of the discontent generally prevailing among the prisoners, their march from Herne railway station to the camp at shaft V (a distance of about half-an-hour's walk) was very slow. On their arrival in camp the prisoners were very dilatory in obeying orders, which were repeatedly and emphatically given them; and this although most of them had already been prisoners for almost a year and must have known their obligations as regards obedience.

On this occasion the Englishman Gothard, in particular, disregarded the order to fall in, because he wished first to mix his cocoa at a hot-water pipe. Excited over this disobedience, the accused, as has been credibly stated by Gothard and other witnesses, hit Gothard on the head with the fist and as he ducked under the blows, gave him a blow on the nose and eye with his sheathed side-arm, thus drawing blood. In this the accused offended against §§122, para. 1, 55, No. 2, of the Military Penal Code. This case is the same as that in para. I, 20, of the indictment, which charges him with illusage of an unknown Englishman.

It has not been proved that the accused on this evening committed any further punishable offences. That he did so is asserted by some witnesses (Abel, McLaren), but there is apparently some confusion with events of the following day, the 14th October. These are dealt with later. The prisoners fell in and a roll was called. They were then divided into working shifts for the following day. At the same time clothes were handed out to them, which they were to wear while at work in the pit.

In

IV. During the night of 13th-14th October the English prisoners agreed jointly to refuse to work in the mine, partly because only a few of them were miners and they did not like this kind of work, and partly because they looked upon such work as a help to Germany in her conduct of the war. consequence of this, on the morning of 14th October, only some of the English prisoners, who were to form the morning shift, put in an appearance. Some of these, however, had not put on the mining clothes, which had been given out to them, though they had the clothes with them. Others had left the mining clothes in the sleeping room. As they had planned, they refused to obey the repeated order to put on the mining clothing. There were loud shouts such as "Nix Minen." They informed the accused through Parry that they would not go down the mine and gave their reasons.

In view of the strict orders given to the accused to see that under any circumstances the work was undertaken, he found himself in a difficult position. In order to enforce obedience to his orders to change clothes, which

had been repeated and explained to the prisoners, the accused first ordered his men to hold their rifles and to fix bayonets before the prisoners' eyes. Thereby he showed without any doubt that he intended his orders to be obeyed. By no such means could he succeed in breaking the disobedience of the prisoners. He was no more successful when he arrested and placed in the cells a number of them, who persisted in their disobedience in spite of repeated orders given personally. On the contrary the prisoners still made it clear by shouts, such as "Arrest "and the like, that they were determined, as they had agreed, not to obey the order to change their clothes. The position was not changed even when the pickets showed clearly that they were ready to use their bayonets and rifles. In order to quell this open revolt without delay and to break the prisoners' determination before their insubordination grew worse, the accused, thrown back entirely upon his own resources, was obliged to use force to secure obedience to his orders. In so acting he was justified and in duty bound. He was bound by the orders given to him to see that the work was done and by those orders he was covered. In view of these orders, a refusal of obedience, especially when general and disorderly, was inadmissible. Though they had a right to lodge complaints, the prisoners, as subordinates, were bound to comply unconditionally with the orders of the accused, even in cases in which they considered the orders to be illegal. In so far as the accused employed force, or ordered it to be employed, in order to quell an open revolt on the part of the prisoners or to compel obedience to his orders, he has not acted contrary to law and consequently has not rendered himself liable to punishment.

This right of compelling obedience includes, under the then existing circumstances, a right to make any necessary use of weapons; and this independently of §124 of the Military Penal Code. In particular, the accused committed no breach of the law, when under such circumstances, in order to avoid unnecessary bloodshed he did not make use of rifles and side-arms for the purpose of shooting or stabbing, but used the butt ends of the rifles against unruly prisoners.

It is essential, however, that, in the use of physical force, whether by the use of weapons or without, a man in such a position should not exceed the degree of force necessary to compel obedience. It has not been proved that the accused went beyond this limit. It seems quite clear that no serious wounds were inflicted, in spite of the use of weapons.

In order to enforce his authority in face of the united and deliberate refusal of obedience, the accused first gave a perfectly proper order that small groups of 2 to 4 men should be brought into the dressing room and there compelled, partly by force, to change their clothes. Then he ordered larger groups of prisoners, who were not only persisting in their disobedience, but were encouraging each other to continue to disobey, to be driven into the dressing room. Force, partly by the use of the butt-end of the rifle, was rightly employed against these obstinate men also. Further force was in

part necessary to get the men, who had changed their clothes, out of the dressing room and into the pit cage.

As regards the incidents of 14th October, the evidence of the witnesses shows that only in the case of the prisoner Baker is there any doubt whether the accused used or tolerated a greater amount of force than the insubordination of the prisoners justified. Baker, as he himself states, received a blow with the butt-end of a rifle, not from the accused, but from a sentry. This was because, when ordered to get down from his bunk, he did not do so quickly enough. When he did get down the accused then dealt him a further blow in the face. Owing to the confusion prevailing at that time, this matter does not appear to be sufficiently elucidated for the court to hold that a punishable offence on the part of the accused has been proved.

In all the cases included in the indictment, which relate to ill-usage in direct connection with the mutinous refusal to work on 14th October (No. 1, 3 and 4 of the indictment and Nos. 1, 2 and 6 of the supplementary indictment), the Senate has arrived at the decision to acquit the accused. The same holds good as regards the kicks and blows alleged in the indictment (No. I., 1), which relate to prisoners who have not been identified. These incidents appear to relate, not to the falling-in on 13th October, but to the measures necessary for the enforcement of obedience on 14th October. V. No further cases of violence on the part of accused against the English prisoners of war placed under him have been proved in relation to the month of October, 1915. It cannot be established whether this, as the defence maintains, is due to the prisoners being so overawed by the accused that they at first avoided further conflicts with him. The fact is that the prisoners, after their first resistance had been broken, took up their work in the mine and that they subsequently executed it without hesitation, if with varying diligence. At the numerous inspections of the camp by supervising officers, the prisoners, as they themselves testify, brought forward no complaint of any kind, either concerning the legality or the amount of their employment in mining, or concerning their treatment by the accused, or in the mine or even concerning their lodging or maintenance. That the accused at any time prevented complaints being made by the prisoners has not in any way been shown. On this accusation (No. II., 2 of the indictment) the accused is therefore acquitted.

VI. In reality the prisoners had also no justifiable grounds for complaint about their lodging and maintenance. The lodging conditions were satisfactory and the accused endeavored with great zeal to remedy the defects of the camp, which at the beginning still required improvement. Above all he energetically attended to the welfare of the prisoners, personally arranged with the directors of the mine and the boarding contractor about their food, so that the prisoners' food, especially their meat, might be served to them in full measure and in a condition to which no objection could be taken. As a