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3. Wehrmachtjustiz at War
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CHAPTER THREE Wehrmachtjustiz at War The Wartime Provisions While the prewar Wehrmacht possessed a strong weapon for the maintenance of Manneszucht—in the form of conservative jurists motivated to atone for 1918, criminal codes purged of liberal mitigation clauses, and special units for the isolation of recalcitrant soldiers —the wartime legal provisions enabled courts-martial to proceed against all crimes, real or imagined, with unprecedented speed and vigor. The few obstacles to arbitrary justice that remained after 1939 would be eliminated piecemeal during the war. The Wartime Penal Code and the Wartime Judicial Procedure Code, which were formulated in the general expectation of war during the Sudeten crisis and signed by Hitler on August 17, 1938, went into effect on August 26, 1939, just a few days before the German attack on Poland. The political leadership had not dictated these codes to the jurists. “Just as the Wehrmacht and its legal advisers had formulated . . . the decrees and orders for the racial war in the east, Wehrmacht jurists in 1938 designed . . . these new provisions.”1 The Wartime Penal Code and the Wartime Judicial Procedure Code supplanted the Wehrmacht Penal Code, which had not been fully completed in 1939. “As it states euphemistically in the ordinances, they should close the gaps in the current laws. At the same time, they should draw on the experiences of the First World War. That is, to give total mobilization and the absolute priority of war necessity criminal-legal flanking protection.”2 These two ordinances were the result of a collaborative effort between the Reich Ministry of Justice and the Armed Forces Legal Division (Wehrmachtrechtsabteilung) that stretched back as far as 1934, and the regime and military considered them the prerequisites for total war.3 Both had been designed with Germany’s perceived lessons of the First World War in mind.4 “Just as food ration cards were prepared before the war to prevent a repetition of the dissatisfaction of the population because of food shortages in the First World War,” W E H R M A C H T J U S T I Z AT W A R 37 just as the Wehrmacht’s brothel system had been created to prevent the transmission of carnal flu, which sidelined so many soldiers during that conflict, so also was military criminal law prepared to avoid the military judiciary’s alleged mistakes in the Great War.5 Conceived as the most important mobilization measure in the area of military criminal law, the Wartime Penal Code’s goal was “preeminently the prosecution of any resistance to the war’s conduct.”6 The code expanded a commander’s disciplinary authority for the punishment of trivial criminal offenses. It also expanded the field of military criminal law, creating new categories of criminal offenses, and intensified punishments. In addition, by a modification on November 1, 1939, the code made it possible for courts to exceed any new or preexisting punishment parameters.7 Section 5 of the Wartime Penal Code established Wehrkraftzersetzung (subversion of fighting power) as a criminal offense. Acts such as refusing service, self-inflicted wounds, defeatist expressions, and any other behavior that even remotely appeared militarily obstructive could henceforth be prosecuted as a subversive act and punished with death under the catchall offense of Wehrkraftzersetzung. According to Messerschmidt and Wüllner, military courts convicted as many as thirty thousand servicemen for subversion during the war.8 Section 5 contained the following clauses: Subversion of Fighting Power (1) For the subversion of fighting power is punished with death: 1. whoever openly promotes or incites the refusal of military service in the German or allied armed forces, or otherwise [emphasis mine] publicly attempts to subvert or cripple the will of the German or allied peoples for self-defense (zur wehrhaften Selbstbehauptung); 2. whoever attempts to suborn a soldier or reservist to commit insubordination , resistance, actions against a superior, desertion, or absences without leave, or otherwise [emphasis mine] attempts to undermine Manneszucht in the German or allied armed forces; 3. whoever attempts or abets the evasion of military service wholly, partially, or temporarily through self-inflicted wounds, through premeditated deception, or other [emphasis mine] similar means. [52.91.177.91] Project MUSE (2024-03-29 08:13 GMT) 38 PA R T I (2) In less serious cases penal servitude or prison sentences can be passed. With competing laws subsumed under Wehrkraftzersetzung and the clause “or otherwise/other” incorporated into the provision, the Wartime Penal Code provided...