Trials by U.S. Military Commissions

Benjamin B. Ferencz

Christmas, 1944, was celebrated at General Patton’s HQ in Luxembourg, and of course, we received the mandatory Christmas rations for the boys overseas. As we shaped up on the chow line, our mess plates were filled with slabs of cold turkey. That introductory repast was immediately buried to keep it warm under a pile of cool mashed potatoes. The yellow sweet yams were smothered in cranberry sauce. The entire mound was then drowned in a brown substance called gravy, into which was thrown a generous mixture of hard candies and assorted nuts. The nutritious and supposedly delicious pyramid was then crowned with a big cigar plunged into the top of the pile. The army would go to any lengths to make us feel at home.

The Germans were not quite as festive. Much to the surprise of the Allied commanders, the Nazis had launched a major counter assault through the Ardennes forest, hoping to cut off all access to our supply ports in Belgium. German soldiers wearing U.S. uniforms had misdirected U.S. forces and soon units of the 101st Airborne Division found themselves encircled in a trap at Bastogne in Belgium. When the Germans called upon the U.S. Commander, General McAuliffe, to surrender, he instead acquired world fame with his audacious one word retort, “Nuts!” As should have been expected, the somewhat puzzled Germans continued to hammer the beleaguered American troops. Foul weather prevented our air corps from coming to the rescue. Patton gave the order, “Every man who can carry a gun, get going to Bastogne! Now!!” That included me.

As we raced north to the front, I was jammed into an open truck crowded with other shivering soldiers preparing for what became known as “The Battle of the Bulge.” Bits of paper were stuffed into the barrels of our M 1 rifles to keep out the snow and pouring rain. We were warned not to leave the vehicles since all roads and adjacent areas had been thoroughly mined by the meticulous Krauts. I learned an important lesson: never piss against the wind or you may get it in the face.

Before we could reach our destination, the weather cleared and the air corps went to work. By the time we arrived, Bastogne was totally destroyed. The Belgian inhabitants who survived were dazed and desolate. Their homes were in ruins. German prisoners of war were being transported to the rear. There was total chaos in the battered city. In a bombed-out basement, some of the guys from Patton’s HQ found what they thought were cases of wine. To me it tasted like vinegar. Victory had to be celebrated. A few hungry young Belgian ladies eagerly accepted the invitation to join in the festivities. A party was arranged in the pitch black cellar that was gaily decorated with an American flag on the wall and U.S. army blankets on the floor. The weary soldiers drank the vinegar to lift their spirits, and they did whatever they could to console the ladies in their hour of need.

When we returned to HQ in Luxembourg, we heard rumors that American soldiers captured in the town of Malmedy had been brutally murdered by their Nazi captors. There was no time to delay for legal considerations. With our flank secured, Patton’s tanks continued their relentless drive eastward in pursuit of German forces retreating back to their homeland. Intelligence sources reported to HQ that Allied flyers that were shot down, or who parachuted into German territory were being systematically murdered on the ground. That was clearly a crime in violation of the laws and customs of war. It was time for the U.S. to respond to the breach of international law.

The Judge Advocate Section of Third Army Headquarters at that time consisted of about five Lt. Colonels led by Colonel Charles Cheever, who was required to have legal training. Their normal duties consisted of sitting in judgment at courts martial when U.S. soldiers were accused of violating the military manual proscribing impermissible conduct. The typical charge was desertion, absence without leave (AWOL), attempted rape, robbery, insubordination, and similar offenses. Officers could be charged with “conduct unbecoming an officer,” the exact meaning of which was unspecified and officers were usually acquitted. Judges, Prosecutors, and Defense Counsel were all officers appointed by the Commanding Officer. Such proceedings frequently lasted no more than a few minutes.

I soon made it clear to my Lt. Col. that if we were to cope with the incoming reports of war crimes, it would be necessary to find men who had more familiarity with law and the type of crimes that were being committed against American soldiers. It did not take long before reinforcements arrived. I was in my office when a soldier appeared and saluted. He was completely covered with mud and had a rifle slung over his back. “Private Jack Nowitz, reporting Sir,” he said. “Sit down, soldier,” I said, “I’m only a Corporal, and you don’t have to salute me. Who are you?” It turned out that he was a Yale law graduate, had practiced law in Connecticut, and spoke several languages. He was told to be under my direct command, and I was the only on who had any idea about what he was supposed to do. His past military service had focused on digging ditches for the Corps of Engineers.

As reports began to pour in about the murder of allied flyers by civilians on the ground, Corporal Ferencz, assisted by his able comrade Private Nowitz, sprang into action. After some initial joint investigations, we each took different routes. A typical investigation began with an intelligence report that a U.S. flyer or flyers had been captured on the ground and had then been beaten to death by a German mob. I would proceed by jeep to the scene of the crime, summon the Burgermeister, or police chief, if one was around, and order that all civilians within a hundred yards of the scene be assembled. The only authority I had was the .45 caliber gun around my waist and the fact that the U.S. Army was swarming all over town. Under such circumstances, Germans are very obedient, and I do not recall ever encountering any resistance.

In a typical easy case, the assembled witnesses would be told, with help of a commandeered “interpreter” that they were to sit down and write out an exact report of what had happened. The form I had prepared began with a declaration, in German, that the witness swore to tell the whole truth under penalty of death. (This became known as “the Ferencz Miranda Rule.”) After listening to the English translation of a dozen or more of such affidavits, there emerged a clear picture of the event. I knew exactly by whom, when, and where the crime had been committed and usually where the dead bodies might be found. I would then return to HQ and write a full report. It gave a complete description of the crime, the laws of war that were violated, the name and addresses of the important witnesses (whom I had placed under “house arrest”), and the name of the criminal suspects whose names were put on a list of persons wanted for immediate apprehension and trial. But cases weren’t always that simple.

If I knew where the body was, it would be important to get photos and positive identification. The victim would often be in a shallow grave. I was never any good at digging. I did not dare to use a pickax lest I be unable to distinguish it from a stab wound or bullet hole. So I devised my own technique. If I could locate the cadaver by digging with my hands, and tie a rope around at least one ankle, I could attach the other end to the jeep and slowly extract the body with fingerprints intact for positive identification by the Quartermaster corps that was summoned to remove the dead soldier. Under these very difficult circumstances I tried to treat the deceased with every possible respect. This somber duty has always laid heavy on my mind, and I was always grateful that I was only the investigator, and not the victim.

Sometimes the results of my investigations were surprising. I recall the case of three flyers shot down and killed on the ground by a mob. The criminals had the usual excuse that they were acting under orders from Berlin to treat all bombardiers as war criminals. I tracked down the names and identification numbers from Gestapo records in the area where the crimes occurred. I then discovered that the flyers had been dumped in a hole at the edge of the local cemetery. I had to threaten the warder with having him dig up the entire cemetery before he would reveal the burial site. I washed the bodies down with pails of water and found the ID numbers of two of them on the inside of their fatigues, as required by the army. The third person was completely naked. He had a crew cut and looked like a typical American boy. I reported to the Adjutant General that he could notify the next of kin that the three men had been murdered and their bodies found.

Several months later, when the perpetrators of those crimes were on trial before a Third U.S. Army Military Commission, I learned by chance that the dead flyer who was naked with no ID, was in fact, alive and well in the United States. I suggested that he be interrogated to see if he had some clue regarding the misidentified third man. I never found out the answer. It taught me to never again rely on circumstantial evidence—and I never did.

It was spring of 1944 and the German army was on the run. The front was moving very rapidly. Patton’s tanks kept rolling as Allied troops kept battering their way toward Berlin from all sides. The freezing German army had surrendered at Stalingrad. It must have been obvious to all Germans that the war was lost, yet they fought on, frantically hoping their Fuhrer would save them. “My country, right or wrong” was a recipe for disaster. The day of reckoning was rapidly approaching.

At Third Army HQ, reinforcements began to arrive for the new War Crimes Section of the Judge Advocate’s Office. Three qualified enlisted men, none above the rank of Corporal, joined Private Nowitz and I. A Warrant Officer, Morris Wright, who had been a good lawyer in Atlanta before he entered the army as a Private, also joined the staff. Two Dutchmen, Jan Fenijn and Jan Black, were to serve as interpreters. Five new officers, Majors and Lt. Colonels, were also assigned. Almost all had been tank commanders, and now were suffering from what appeared to me to be alcoholism or shell-shock. They were sent to the JAG non-fighting unit as a substitute for standard “R&R” (Recreation and Rehabilitation). Some of them were usually sober enough to sign the reports prepared by the enlisted men.

A message was received from the CIC (Counter Intelligence Corps) that a captured American airman had been killed on the ground by an enraged mob in the town of Gross Gerau near Frankfurt. I was assigned to investigate. It was a typical “murder of Allied flyer” case. Two days after an Allied bombing raid, an American plane had been hit, and one of the crewmen who parachuted out was captured and then bludgeoned to death. One of the witnesses described how her own daughter had repeatedly beaten the flyer on the head with a shoe. She said she had tried unsuccessfully to call off her daughter, since that was no way for a German girl to behave. I located the daughter. She was an attractive young woman who explained through her tears that during the bombing raid her two children had been killed. She admitted that in her grief and rage she had joined the mob. It seemed that the fatal blow had been struck by a local fireman using a crowbar. Since the woman seemed remorseful, I simply placed her under house arrest. The truth is, I felt sorry for her. Then I went out to get the fireman who had boasted to the crowd that he loved being covered with American blood.

When I banged on the door of the fireman’s home, a woman answered. Her husband, she said, was not there and she didn’t know where he was. I searched the house. He was gone. “Do you do his laundry?” I asked. “Of course,” came the proud reply. She admitted that she had washed the shirt soaked with American blood. I took her sworn statement and the shirt as evidence. Several months later, as I was preparing to leave the army, I dropped in at the Gross-Gerau war crimes trial being conducted by a Third Army Military Commission. Among perhaps a dozen defendants, I recognized both the fireman and the pretty young mother whose children had been killed in the raid. The fireman was sentenced to death. When the young woman’s sentence of two years imprisonment was announced, she fainted in the prisoner’s dock. I asked the medic who came to her aid whether she was OK. He said she was fine, but she was pregnant from one of the U.S. solders assigned to guard her. Strange things happen in times of war.

Not every German deserved to be treated as a criminal. It was raining when we entered the bombed out city of Frankfurt. My jeep skidded on a pile of rubble and brushed against an old woman who jumped out of the way. She was moaning bitterly as I picked her up. There was no apparent injury and I asked her, in broken German, whether she was hurt. She dusted herself off but her tears continued to flow. I asked her gently if I could help. “I cannot find my husband,” said the old lady. She explained desperately that they had been together when the bombs hit and she feared he might be buried under the rubble. I put her in the jeep and took her to the military government office where a “missing persons” list was being compiled—they might have some information. I left her in the long line of other anxious old ladies also waiting and searching. Whether she ever found her husband I will never know.

Intelligence reports had started to come in that some of the advancing troops were running into large groups of starving people being guarded by the SS. When I reported to Lt. Colonel Joseph, I was surprised to see that he wore a brand new set of shining eagles on his epaulets. “Corporal,” he said to me, pointing proudly to his shoulder, “I know that my promotion is due largely to your work. In appreciation, I am promoting you to Sergeant!” He then reached across his desk and handed me a set of three new stripes. The Colonel had come up in the army the hard way, and for him it was a crowning moment. Being promoted meant nothing to me. “Sir,” I said, “I’m sorry, but as you know, I have been trying to do my job without wearing any insignia or reference to rank. If it be known that I am only a sergeant, I will be unable to do the things that must be done. My only wish now is to get into the concentration camps that our army is liberating. Major war crimes are occurring and I know how to prove it. These stripes would only be a handicap.” At that point I slowly dropped his gift into the wastepaper basket. I could see that he was stunned. After some reflection, he promised to give me a free hand to pursue my goal. I’m sure that he never forgave me. I don’t blame him. I owe him an apology.

A large war map on my wall tracked the advances of our army and the location of known Nazi concentration camps. My assignment was to get into the camps as soon as possible and assemble whatever evidence was needed to prove beyond doubt the nature and extent of the atrocities committed. I knew that I would have to rely on help from the advancing troops. I therefore typed out an official authorization saying that I was entitled to interrogate any suspects, enter any premises, and do all things necessary to carry out a war crimes assignment. All units and commanders were directed to give me every possible assistance. It was signed “On behalf of the Commanding General” well known to all as the ferocious Patton. I then found an officer to sign it. I think he was sober at the time. To make it even more impressive, I stamped “Secret” at the top and bottom. Officially classified as a Jeep driver, I had the front of my vehicle painted in bold letters with the German words “IMMER ALLEIN,” meaning “always alone,” as I prepared to pursue Nazi criminals single-handed like the Lone Ranger.