Malmedy Massacre Trial

"It's so long ago now. Even I don't know the truth. If I had ever known it, I have long forgotten it. All I knew is that I took the blame as a good CO should and was punished accordingly." Jochen Peiper, quoted in A Traveler's Guide to the Battle for the German Frontier by Charles Whiting

Lt. Col. Joachim Peiper on the witness stand, June 17, 1946

The Malmedy Massacre proceedings were conducted like a US Army court martial, except that only a two-thirds majority vote by the panel of 8 judges was needed for conviction. Each of the accused was assigned a number because it was hard to keep the names of the 73 men straight. They all wore their field uniforms, which had been stripped of the double lighting bolt SS insignia and all other military emblems and medals.

The proceedings lasted for only two months, during which time both the prosecution and the defense presented their cases. Fearful that they might incriminate themselves on the witness stand, their defense attorney, Lt. Col. Everett, who believed that they were guilty, persuaded most of the SS soldiers not to testify on their own behalf. Col. Joachim Peiper, pictured above, volunteered to take all the blame if his men could go free, but this offer was declined by the court.

The courtroom was in the Dachau complex where the former concentration camp was located. The tall chimney of the Dachau crematorium loomed in the distance, only a quarter of a mile away from where the Jewish "law member" of the court sat under a huge American flag pinned to the wall. It had been only a little more than a year since soldiers in the American Seventh Army had liberated Dachau on April 29, 1945 and had discovered the horror of the gas chamber at Dachau and dead bodies piled up in the morgue of the crematorium building. In June 1945, the former Dachau concentration camp became War Crimes Enclosure No. 1 where the accused German war criminals were held while they awaited trial by the American Military Tribunal.

Col. Peiper listens to closing statement with his arms folded

After only 2 hours and 20 minutes of deliberation by the panel of judges, all 73 of the accused SS soldiers, who were on trial, were convicted. Each of the accused was required to stand before the judges with his defense attorney, Lt. Col. Everett, by his side, as the sentence was read aloud.

Waiting for the Malmedy Massacre verdict outside the courtroom

Forty-two of the accused were sentenced to death by hanging, including Col. Peiper. Peiper made a request through his defense attorney that he and his men be shot by a firing squad, the traditional soldier's execution. His request was denied. General Sepp Dietrich was sentenced to life in prison along with 21 others. The rest of the accused were sentenced to prison terms of 10, 15 or 20 years.

None of the convicted SS soldiers were ever executed and by 1956, all of them had been released from prison. All of the death sentences had been commuted to life in prison. As it turned out, the Malmedy Massacre proceedings at Dachau, which were intended to show the world that the Waffen-SS soldiers were a bunch of heartless killers, became instead a controversial case which dragged on for over ten years and resulted in criticism of the American Occupation, the war crimes military tribunals, the Jewish prosecutors at Dachau and the whole American system of justice.

Before the last man convicted in the Dachau proceedings walked out of Landsberg prison as a free man, the aftermath of the case had involved the US Supreme Court, the International Court at the Hague, the US Congress, Dr. Johann Neuhäusler, a Bishop from Munich, who was a survivor of the Dachau concentration camp, and the government of the new Federal Republic of Germany. All of this was due to the efforts of the defense attorney, Lt. Col. Willis M. Everett.

James J. Weingartner, the author of "A Peculiar Crusade: Willis M. Everett and the Malmedy Massacre," wrote the story of the Dachau proceedings from information provided by Everett's family and gleaned from his letters and diary. According to Weingartner, shortly before the proceedings were to begin, defense attorney Lt. Col. Everett interviewed a few of the 73 accused with the help of an interpreter. Although the accused were being held in solitary confinement and had not had the opportunity to consult with each other, most of them told identical stories of misconduct by their Jewish interrogators.

The accused claimed that they had already had a trial, which was conducted in a room with black curtains, lit only by two candles. The judge was a Lt. Col. who sat at a table draped in black with a white cross on it. After these mock trials in which witnesses testified against the accused, each one was told that he had been sentenced to death, but nevertheless he would have to write out his confession. When all of them refused to write a confession, the prosecution dictated statements which they were forced to sign under threats of violence. There was no question that these mock trials had actually taken place, since the prosecution admitted it during the investigation after the Dachau proceedings ended.

According to Weingartner, Lt. Col. Peiper presented to Everett a summary of allegations of abuse made to him by his soldiers. They claimed that they were beaten by the interrogators and that one of the original 75 accused men, 18-year-old Arvid Freimuth, had hanged himself in his cell after being repeatedly beaten. A statement, supposedly written by Freimuth, although portions of it were not signed by him, was introduced during the proceedings as evidence against the other accused. As in the Nuremberg IMT and the other Dachau proceedings, the accused were charged with conspiracy to commit war crimes, as well as with specific incidents of murder, so Freimuth's statement was relevant to the case, even after he was no longer among the accused himself.

An important part of the defense case was based on the fact that the accused were classified as Prisoners of War when they were forced to sign statements incriminating themselves even before they were charged with a war crime. As POWs, they were under the protection of the Geneva Convention of 1929 which prohibited the kind of coercive treatment that the accused claimed they had been subjected to in order to force them to sign statements of guilt. Article 45 of the Geneva Convention said that Prisoners of War were "subject to the laws, regulations and orders in force in the armies of the detaining powers." That meant that they were entitled to the same Fifth Amendment rights as American soldiers.

After being held in prison for an average of five months, the SS Malmedy veterans were charged as war criminals on April 11, 1946, a little over a month before their case before the American military tribunal was set to begin. By virtue of the charge, they were automatically reduced to the status of "civilian internee" and no longer had the protection of the Geneva Convention.

As quoted by Weingartner, the defense made the following argument at the trial:

"As previously outlined, International Law laid down certain safeguards for treatment of prisoners of war, and any confession or statement extracted in violation thereof is not admissible in a court martial or any subsequent trial under a code set up by Military Government. If a confession from a prisoner of war is born in a surrounding of hope of release or benefit or fear of punishment or injury, inspired by one in authority, it is void in its inception and not admissible in any tribunal of justice.

Could anyone, by artifice, conjure up the theory that the Military Government Rules and Ordinances are superior to the solemn agreements of International Law as stated in the Geneva Convention of 1929? Is this court willing to assume the responsibility of admitting these void confessions?....It is not believed that the Court will put itself in the anomalous position of accepting statements into evidence which were elicited from prisoners of war in contravention of the Geneva Convention and therefore a violation of the Rules of Land Warfare on the one hand and then turn squarely around and meet out punishment for other acts which they deem violations of the same laws. To do so would be highly inconsistent and would subject the Court and all American Military Tribunals to just criticism."

Lt. Col. Rosenfeld ruled against a defense motion to drop the charges, based on the above argument, by proclaiming that the Malmedy Massacre accused had never been Prisoners of War because they became war criminals the moment they committed their alleged acts and were thus not entitled to the protection of the Geneva Convention of 1929. On March 10, 1945, an order signed by General Dwight D. Eisenhower had reduced the status of all German POWs to that of "disarmed enemy forces," which meant that they were no longer protected under the rules of the Geneva Convention after the war. Moreover, as the law member of the panel of judges, Lt. Col. Rosenfeld ruled that "to admit a confession of the accused, it need not be shown such confession was voluntarily made...." Contrary to the rules of the American justice system, the German war criminals were presumed guilty and the burden of proof was on them, not the prosecution.

The prosecution case hinged on the accusation that Adolf Hitler himself had given the order that no prisoners were to be taken during the Battle of the Bulge and that General Sepp Dietrich had passed down this order to the commanding officers in his Sixth Panzer Army. This meant that there was a Nazi conspiracy to kill American prisoners of war and thus, all of the accused were guilty because they were participants in a "common plan" to break the rules of the Geneva Convention. Yet General Dietrich's Sixth Panzer Army had taken thousands of other prisoners who were not shot. According to US Army figures, there was a total of 23,554 Americans captured during the Battle of the Bulge.

US Army Major Harold D. McCown testified as a witness for Col. Peiper

Lt. Col. Jochen Peiper was not present during the alleged incident that happened at the crossroads near Malmedy. The specific charge against Peiper was that he had ordered the killing of American POWs in the village of La Gleize. Major Harold D. McCown, battalion commander of the 30th Infantry Division's 119th Regiment of the US Third Army, testified for the defense at the trial.

McCown had been one of Peiper's prisoners at La Gleize; he claimed that he had talked half the night with the charismatic Peiper, who allegedly didn't sleep for 9 straight nights at the beginning of the Battle of the Bulge. McCown had heard the story of Peiper's men shooting prisoners at the crossroads near Malmedy and he asked Peiper about the safety of the Americans at La Gleize. By this time, Peiper's tanks were trapped in the hilltop village of La Gleize and he had set up his HQ in the cellar of the little schoolhouse there. McCown testified that Peiper had given him his word that the American POWs at La Gleize would not be shot, and McCown also testified that he had no knowledge that any prisoners were actually shot there.

Peiper poses for his mug shot at Schwabish Hall prison

The main evidence in the prosecution case was the sworn statements signed by the accused even before they were charged with a war crime, statements which defense attorney Everett claimed were obtained by means of mock trials and beatings in violation of the rules of the Geneva Convention of 1929. The war crimes with which they were charged were likewise violations of the Geneva Convention of 1929, a double standard which didn't seem right to defense attorney, Lt. Col. Willis M. Everett.

Another double standard that bothered Everett was that there had been many incidents in which American soldiers were not put on trial for killing German Prisoners of War, but the defense was not allowed to mention this. Any of the accused men who inadvertently said anything about American soldiers breaking the rules of the Geneva Convention were promptly silenced and these comments were stricken from the record.

General Sepp Dietrich was a colorful character, much like General George S. Patton, who was his equivalent in rank. Patton's Army was accused of several incidents in which German prisoners of war were shot, which he admitted in his autobiography. Patton wrote the following entry in his diary on 4 January 1945:

"The Eleventh Armored is very green and took unnecessary losses to no effect. There were also some unfortunate incidents in the shooting of prisoners. I hope we can conceal this."

In another incident involving the shooting of German and Italian Prisoners of War, an American captain was acquitted on the grounds that he had been following the orders of General Patton, who had discouraged American troops from taking prisoners during the landing of the US Seventh Army in Sicily.

Ironically, an incident in which Americans executed German prisoners happened within half a mile of the Dachau courtroom. On April 29, 1945, the day that the SS surrendered the camp at Dachau, American soldiers of the 45th Thunderbird Division of the US Seventh Army lined up surrendered Waffen-SS soldiers against a wall and machine-gunned them down in the SS Training Camp, next to the concentration camp. This was followed by a second incident, on the same day, which happened at a spot very near the courtroom: the killing of SS guards at the Dachau concentration camp after they came down from their guard tower and surrendered with their hands in the air.

A third execution of German soldiers who had surrendered on April 29th, known as the Webling Incident happened in the village of Webling on the outskirts of of the town of Dachau. American soldiers of the 222nd Regiment of the 42nd Rainbow Division executed soldiers of the German Home Guard after they had surrendered. The Home Guard consisted of young boys and old men who were forced into service in the last desperate days of the war to defend their cities and towns.

After an investigation by the US Army resulted in the court martial of the soldiers involved in these killings, General George S. Patton tore up the papers and tossed them in the wastebasket. Col. Howard A. Buechner, the American medical officer who was there when Waffen-SS soldiers were executed during the liberation of Dachau, wrote in his book The Hour of the Avenger, regarding the court martial of soldiers in the 45th Thunderbird Division:

"Public outrage would certainly have opposed the prosecution of American heroes for eliminating a group of sadists who so richly deserved to die."

According to World War II historian, Stephen E. Ambrose, the author of the best-selling book, "Citizen Soldiers," General Maxwell Taylor instructed the men of the 101st Airborne Division to take no prisoners during the Normandy invasion, which they participated in after parachuting into France. Ambrose was a consultant for the HBO TV series called "Band of Brothers," which showed soldiers of the 101st Airborne shooting German Prisoners of War. American audiences cheered when German POWs were gunned down by American soldiers in the Spielberg movie "Saving Private Ryan."

After the war, the Germans attempted to bring a list of 369 murder cases, involving US Army soldiers killing German POWs and wounded men, before a German court, but the cases were thrown out. The list of these 369 killings was published in a German newspaper.



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