War Crimes Trial(May 12 – July 16, 1946
Following the defeat of the German Army in World War II, the Judge Advocate Department of the Third U.S. Army set up a War Crimes Branch which conducted 489 court proceedings in which 1,672 German war criminals were charged. This was apart from the proceedings against the major German war criminals before an International Military Tribunal at Nuremberg. Most of the secondary proceedings conducted by the American occupation forces were held at Dachau, on the grounds of Germany’s most infamous horror camp, between November 15, 1945 and 1948. The most controversial of the Dachau proceedings, and the one that is still discussed to this day, is the infamous Malmedy Massacre case against the Waffen-SS soldiers who were accused of the murder of American Prisoners of War and Belgian civilians during the intense fighting of the Battle of the Bulge.
The Malmedy Massacre, or the shooting of 84 American soldiers who had surrendered, took place on December 17, 1944, the second day of the Battle of the Bulge. After the war, during the summer of 1945, the U.S. occupation authorities rounded up over 1,000 former soldiers in the 1st SS Panzer Division and interrogated them. Seventy-five of them were originally charged as war criminals in the Malmedy case. One of those who were charged was 18-year-old Arvid Freimuth who committed suicide in his cell before the trial started. Charges were dismissed against Marcel Boltz after it was learned that he was a French citizen. That left 73 men who were ultimately prosecuted by the American Military.
The Malmedy case became officially known as U.S. vs. Valentin Bersin, et al. Bersin’s name was the first in the alphabetical list of the accused, and he was the first to be sentenced to death for killing Belgian civilians in the village of Wanne.
The proceedings in the Malmedy Massacre case started on May 12, 1946 and the verdicts were read on July 16, 1946. All of the 73 men on trial were convicted and 42 were sentenced to death by hanging. The list of the names of the 73 men are on a separate page.
Although popularly known as “the Dachau trials,” these court proceedings by the American Military Tribunal at Dachau were not conducted like a typical trial in the American justice system. Guilt was established beforehand by interrogators assigned to obtain confessions from the accused who were then presumed guilty; the burden of proof was on the defense, not the prosecution. A panel of American military officers acted as both judges and jury and the defense attorneys were also American military officers. The judges took judicial notice of the crimes that were allegedly committed, which meant that the defense was not permitted to argue that the crimes had not taken place. Hearsay testimony was allowed and affidavits could be submitted by witnesses who did not appear in the courtroom and thus could not be cross examined by the defense. In some of the proceedings at Dachau, the prosecution witnesses were paid to testify. Some of the accused were not permitted to testify in their own defense. Thus the outcome of the Malmedy Massacre proceedings was never in doubt.
The accused in the proceedings included General Josef “Sepp” Dietrich, commander of the Sixth Panzer Army, who was a long-time personal friend of Adolf Hitler, and Col. Jochen Peiper, the commanding officer of “Kampfgrüppe Peiper,” the armored battle group which spearheaded the German attack in Hitler’s Ardennes Offensive, better known to Americans as the Battle of the Bulge. Peiper’s rank was the equivalent of an American Lt. Col. when he was assigned on December 16, 1944 to lead the tank attack, but after the battle, he was promoted to Colonel. Peiper preferred to be called by his nickname, Jochen, rather than his real first name, Joaquim.
Both Peiper and Dietrich were members of the “Leibstandarte-SS Adolf Hitler,” an SS outfit which was established in 1933 under the command of Dietrich. SS stands for Schutzstaffel which means “Protection Squad” in English. The SS was an elite group that was separate from the regular German army, which was called the Wehrmacht. The Schutzstaffel had started out as a private protection squad, whose purpose it was to personally guard Adolf Hitler. Another branch of the SS was the SS-Totenkopfverbände, which served as the guards in the concentration camps. The SS was a unique branch of the German armed forces; it was a volunteer army which had many divisions made up of recruits from almost every country in Europe. The Waffen-SS soldiers swore an oath of loyalty to Adolf Hitler, rather than to their country, as did the Wehrmacht soldiers.
General Sepp Dietrich wearing Death’s Head emblem on cap
The SS men was more hated by the Americans than the regular Wehrmacht soldiers. The men in all the SS Panzer (tank) divisions wore the Totenkopf or Death’s Head symbol on their visor caps, the same symbol that was also worn by the Einsatzgruppen when they followed behind the troops, killing the Communists and Jews, when the German Army invaded Russia on June 22, 1941, and the same symbol that was worn by the guards in the Nazi concentration camps.
Dachau was selected as the site for the German war crimes proceedings that were conducted solely by the American military, partly because of the abundant housing available at the former concentration camp and the huge SS Training Camp there, but primarily because it was the place most associated with German atrocities in World War II….
Courtroom at Dachau where proceedings took place
Lt. William Perl…was the chief interrogator of the Malmedy Massacre accused….The chief prosecutor, called the Trial Judge Advocate, was Lt. Col. Burton F. Elli…The lawyer for the defense was Lt. Col. Willis M. Everett….Everett was ably assisted by Herbert J. Strong, a civilian attorney who had volunteered to work on the war crimes military tribunals….A panel of high-ranking American army officers acted as both judge and jury. Seven members of the panel are shown in the photograph below. The president of the panel was Brigadier General Josiah T. Dalbey….
Judges at Malmedy, Panel President Dalbey is the fourth man from the left
Of all the proceedings before the American military tribunal at Dachau, the one that was the most highly publicized was the Malmedy Massacre case. The proceedings were filmed and scenes were shown in the newsreels in American theaters. The accused complained that they were being blinded and cooked by the hot lights needed for the movie cameras. This case was important because every school child in America knew the name of the Battle of the Bulge. It was the most decisive battle on the Western front, the battle in which the Allies crushed the enemy army, leading to Germany’s final defeat. Besides bringing war criminals to justice, the Nuremberg and Dachau military tribunals were designed to educate the public, both in Germany and in America, that World War II was “the Good War,” the war fought by the American good guys against the German bad guys, who were rotten through and through, from their evil leader right down to the teenagers who died defending their country. The purpose of the Dachau military tribunals was to establish once and for all that the Germans had committed unspeakable atrocities, which were all part of an evil conspiracy masterminded by Adolf Hitler.
Bodies of American POWs killed at Baugnez Crossroads
The incident which became known as “the Malmedy Massacre” happened at the Baugnez Crossroads in the Ardennes Forest in Belgium on December 17, 1944, the second day of fighting in the famous Battle of the Bulge, where American troops suffered 81,000 casualties, including 19,000 deaths, in one of the bloodiest battles of World War II. The German army suffered 70,000 casualties with 20,000 dead in the month-long battle, which didn’t stop even for Christmas Day. It was during this decisive battle that a number of American soldiers were taken prisoner by Waffen-SS soldiers who were fighting in the battle group named Kampfgrüppe Peiper, which was spearheading the German attack.
The photograph above shows some of the 72 bodies which were recovered after they were left lying in the snow until January 13, 1945, four weeks after they were killed. The reason given by the U.S. Army QM unit which eventually retrieved the bodies was that there was still heavy fighting in the area, which was not true, according to American soldiers who participated in the fighting in the vicinity of the Massacre. According to one veteran of the battle, an American Infantry Captain who is now deceased, the alleged massacre was a cover-up to explain why the U.S. Army waited four weeks to collect combat fatalities after they had been notified about the bodies by local Belgian citizens. Another 12 bodies were recovered four months later after all the snow had melted, making a total of 84 victims.
On the day of the incident, Peiper’s assignment had been to capture the bridge over the Muese in the Belgian town of Huy, and hold it to the last man until General Dietrich’s 6th Panzer Army could cross over it, then rush across the northern Belgian plain to take the great supply port of Antwerp, which was the main objective of Hitler’s Ardennes Offensive. Hitler had personally picked the route that Peiper was to take, but heavy artillery fire from the 2nd U.S. Infantry Division had forced him to take an alternative route through the tiny village of Malmedy, close to the Baugnez Crossroads.
Peiper’s Battle Group never reached its objective, which was the bridge over the Muese. Many of Peiper’s tanks were destroyed by the Allies, and after Peiper ordered his men to destroy the remaining tanks and vehicles, the survivors escaped by wading and swimming across the river. Peiper’s men were forced to retreat on foot, at a killing pace, on Christmas Eve 1944. Out of the 5,000 men in Peiper’s unit, only 800 survived the Battle of the Bulge. Almost one out of ten of the survivors was indicted as a war criminal by the victorious Allies.
Defense attorney Lt. Col. Everett (l), Trial Judge Advocate Lt. Col. Ellis (r)
The Baugnez Crossroads was known to the Americans as Five Points because it was the intersection of 5 roads. There is considerable disagreement about what actually happened at Five Points on that Sunday afternoon in 1944 when the blood of American soldiers was spilled in the snow. The victims were members of Battery B of the 285th Field Artillery Observation Battalion. The function of this lightly-armed technical unit was to locate enemy artillery and then transmit their position to other units. No two accounts of the tragedy agree, not even on the number that were killed. The official report said 86 were shot and there are 86 names on the Memorial Wall that has been erected at the site, but the Malmedy Massacre trial was based on the murder of the 72 soldiers whose bodies were autopsied after they were recovered on January 13, 1945, buried under two feet of snow.
According to the story that was pieced together by the American survivors, Peiper’s assault unit had destroyed around a dozen American army spotter planes that day and had captured a group of American soldiers, who had been forced to ride along as Peiper’s men continued down the road on their tanks. At the crossroads, the German tanks caught up with the American soldiers of Battery B, 285th Battalion which had just left the village of Malmedy and were traveling the same road, bound for the same destination. At the crossroads, a U.S. Military Policeman, Homer Ford, was directing traffic as a column of artillery vehicles, led by Lt. Virgil Lary, passed through the intersection, headed for the nearby village of St. Vith.
A five-minute battle ensued in which approximately 50 Americans were killed. Some of the Americans tried to escape by hiding in the Cafe Bodarme at the crossroads, but Peiper’s SS soldiers set the cafe on fire and then heartlessly gunned down those who tried to run out of the building. Survivors of the massacre said that the SS soldiers then assembled those who had surrendered after the battle in a field beside the Cafe. There were three eye-witnesses to the event: the owner of the Cafe, Madame Bodarme, a 15-year-old boy and a German-born farmer, Henri Le Joly. None of these witnesses were called to testify at the military tribunal in Dachau.
According to Charles Whiting in his book entitled The Traveler’s Guide to The Battle for the German Frontier, “The Americans huddled in a field to the right of the pub, some of them with their hands on their helmets in token of surrender; others smoking and simply watching the SS armor pull away, leaving their POWs virtually unguarded. It was so quiet that Mme Bodarme and Le Joly came out of hiding to watch what was going on.”
Peiper’s tank unit continued down the road, after leaving behind a few SS men to guard the prisoners. Legend has it that Lt. Col. Peiper, who had an excellent command of the English language, passed the scene and called out to the American prisoners, “It’s a long way to Tipperary.” According to Whiting’s book, Peiper had heard that an American General was in the next village and he was on his way to capture him. General Dwight D. Eisenhower mentioned in his autobiography, “Crusade in Europe,” that there was some concern among the American generals about being captured, although he didn’t mention Peiper by name.
Lt. Col. Jochen Peiper
At the Dachau proceedings, Lt. Virgil Lary was able to identify Pvt. 1st Class Georg Fleps, a Waffen-SS soldier from Rumania, who allegedly fired the first two shots with his pistol. Some versions of the story say that he fired a warning shot in the air when several prisoners tried to make a run for it. Other versions say that he deliberately took aim and shot one of the Americans. Panic ensued and the SS soldiers then began firing upon the prisoners with their machine guns. The survivors testified that they had heard the order given to kill all the prisoners: “Macht alle kaputt.” According to the testimony of three survivors who played dead, the SS murderers were laughing as they walked among the fallen American soldiers and shot those who still showed signs of life. The autopsies showed that 41 of the Americans had been shot in the head and 10 had head injuries consistent with being bashed with a rifle butt. Curiously, most of the victims were not wearing their dog tags, although all of them were identified by their personal effects, since there were no wallets or watches taken by the Germans.
1st. Lt. Virgil Lary points out Sturmmann Georg Fleps
Private Georg Fleps, who is shown in the photograph above, was sentenced to death by hanging, but his sentence was commuted to life in prison. Forty-two of the accused were sentenced to death, but all the sentences were commuted to life after a Congressional investigation determined that there had been misconduct by members of the prosecution team.
The photograph below shows one of the survivors, an American soldier named Kenneth Ahrens, on the witness stand as he demonstrates how he held up his hands to surrender. Seated beside him is the interpreter who was responsible for translating his words into German for the benefit of the accused.
Kenneth Ahrens demonstrates how he surrendered
The exact number of soldiers who surrendered to the Germans is unknown, but according to various accounts, it was somewhere between 85 and 125. After the captured Americans were herded into the field at the crossroads, they were allegedly shot down by Waffen-SS men from Peiper’s Battle Group in what an American TV documentary characterized as an orgy motivated by German “joy of killing.” Forty-three of the Americans taken prisoner that day managed to escape and lived to tell about it. One of them was Kenneth Ahrens, pictured above, who was shot twice in the back. Seventeen of the survivors ran across the snow-covered field, and made their way to the village of Malmedy where they joined the 291st Engineer Battalion.
The massacre occurred at approximately 1 p.m. on December 17th and the first survivors were picked up at 2:30 p.m. on the same day by a patrol of the 291st Engineer Battalion. Their story of the unprovoked massacre was immediately sent to General Eisenhower, the Supreme Allied Commander of the war in Europe, who made it a point to disseminate the story to the reporters covering the battle. One of the news reporters at the Battle of the Bulge was America’s most famous writer, Ernest Hemingway, who was covering the war for Collier’s magazine. When the gory details of the Malmedy Massacre reached the American people, there was a great outcry for justice to be done. To this day, the Malmedy Massacre is spoken of as the single worst atrocity perpetrated by the hated Waffen-SS soldiers….
SS Lt. Heinz Tomhardt listens as his death sentence is read. Lt. Col. Willis M. Everett, stands on the right.
During the proceedings, the prosecution contended that Lt. Col. Jochen Peiper had instructed his men to fight as they had fought against the Russians, disregarding international law about the treatment of prisoners of war. The defendants testified that they had been instructed to take no prisoners, but they understood this to mean that because they were fighting in a tank unit, they were supposed to send POWs to the rear to picked up by infantry units.
Gen. Sepp Dietrich (11) and Lt. Col. Jochen Peiper (42) were sentenced to death by hanging; General Fritz Krämer (33) was sentenced to 10 years in prison; General Hermann Priess (45) was sentenced to life in prison, but his sentence was commuted to 20 years
Besides the killing of 72 American soldiers at the Baugnez Crossroads, near the village of Malmedy, there were many other charges against the 73 accused. The charge sheet specifically stated that the 73 accused men
“did….at, or in the vicinity of Malmedy, Honsfeld, Büllingen, Lignauville, Stoumont, La Gleize, Cheneux, Petit Thier, Trois Ponts, Stavelot, Wanne and Lutre-Bois, all in Belgium, at sundry times between 16 December 1944 and 13 January 1945, willfully, deliberately, and wrongfully permit, encourage, aid, abet, and participate in the killings, shooting, ill treatment, abuse and torture of members of the Armed Forces of the United States of America, then at war with the then German Reich, who were then and there surrendered and unarmed prisoners of war in the custody of the then German Reich, the exact names and numbers of such persons being unknown aggregating several hundred, and of unarmed civilian nationals, the exact names and numbers of such persons being unknown.”
In all, the accused were charged with murdering between 538 to 749 nameless Prisoners of War and more than 90 unidentified Belgian civilians in the locations mentioned on the charge sheet, which is quoted above. The accused SS men claimed that the civilians, who were killed, had been actively aiding the Americans during the fighting….
The prosecution claimed that General Sepp Dietrich, on direct orders from Hitler himself, had urged the SS men to remember the German civilians killed by the Allied bombing, and to disregard the rules of warfare that were mandated by the Hague Convention of 1907 and the Geneva convention. This meant that all of the accused were charged with participating in a conspiracy of evil that came from the highest level, the moral equivalent of the Nazi conspiracy to exterminate all the Jews in Europe, which was one of the charges against the major German war criminals at Nuremberg.
“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 U.S. 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. Joaquim Peiper, pictured above, volunteered to take all the blame if his men could go free, but this offer was declined by the court….
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 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 U.S. Supreme Court, the International Court at the Hague, the U.S. Congress, Dr. Johann Neuhäusler who was a survivor of the Dachau concentration camp and a Bishop in Munich, 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.
U.S. Army Major Harold D. McCown testified as a witness for Col. Peiper
Peiper poses for his mug shot at Schwabish Hall prison
Col. Jochen Peiper, the main one of the 73 accused in the Malmedy Massacre Military Tribunal proceedings, was not a member of the Nazi party, although he joined the Hitler Youth as a young boy and then, at the age of 19, applied for admission to the elite Waffen-SS in 1934. (He was a Lt. Col. at the time of the Battle of the Bulge, but was promoted to Colonel afterwards.) Sepp Dietrich reviewed his application and admitted him into the “Leibstandarte-SS Adolf Hitler,” one of the most prestigious outfits in the SS. In 1943, the Leibstandarte das Reich and Totenkopf divisions were formed into the new 1 SS Panzer Korps, which was sent to the Eastern Front. After the Korps won a decisive battle at Kharkow, more SS outfits were formed and the Leibstandarte Adolf Hitler was combined with the 2nd SS Panzer Hitler Jugend division to form a new 1 SS Panzer Korps.
Lt. Col. Jochen Peiper, 1 SS Panzer Korps
Peiper had started his military career as an adjutant to Reichsführer-SS Heinrich Himmler, the head of the SS and the arch fiend who masterminded the Holocaust. Himmler is shown in the photograph below on a visit to inspect the troops at the Eastern front, some time after the invasion of Russia in June 1941. He is the man who is wearing an officer’s cap in the exact center of the photo, behind the tank.
Heinrich Himmler visits a Waffen-SS tank division on Eastern front
When the case came to the attention of Secretary of the Army Kenneth C. Royall, he ordered a stay of execution for the 12 men who were scheduled to be hanged in just a few days, and then directed General Lucius D. Clay, the highest authority of the American occupation in Germany to investigate Everett’s charges against the prosecution….Royall appointed a three-man commission, headed by Judge Gordon Simpson of the Texas Supreme Court….The other two members of the commission were Judge Edward L. Van Roden and Lt. Col. Charles Lawrence, Jr.
Lt. Col. Jochen Peiper on the Eastern front
After a six-week investigation conducted from an office which they set up in Munich, the Simpson Commission made its recommendation to Royall. The Commission had looked at 65 mass trials of German war criminals in which 139 death sentences had been handed down. By that time, 152 German war criminals tried at Dachau had already been executed. The 139 men who were still awaiting execution were staff members of the Dachau concentration camp, SS soldiers accused of shooting POWs at Malmedy and German civilians accused of killing Allied pilots who were shot down on bombing missions over Germany. On January 6, 1949, they recommended that 29 of these death sentences, including the 12 death sentences in the Malmedy Massacre case, be commuted to life in prison….
SS 2nd Lt. Kurt Flamm testified on May 27, 1946
In March 1949…General Lucius D. Clay commuted 6 more of the death sentences to life in prison, but not the death sentence of Col. Jochen Peiper, who was the main person in the Malmedy Massacre case. Peiper did not personally shoot any American Prisoners of War, but he was the one who had allegedly ordered his armored unit not to take prisoners….
Private Samuel Bobyns, a U.S. Army ambulance driver, gets admiring glances
from two women as he tries to identify the accused SS man who saved his life
The last 6 death sentences of the men convicted in the Malmedy Massacre proceeding were finally commuted by General Handy in 1951, after the fledgling Federal Republic government demanded a halt to the execution of German war criminals as a necessary precondition to rearmament and their cooperation with the Allies in the Cold War against the Communist Soviet Union. In 1955, a Mixed Parole and Clemency Board was set up with 3 Germans and one representative each from the U.S., Great Britain and France, and as a result, General Sepp Dietrich was paroled in October 1955.
But it was not that easy for General Dietrich to escape justice, since he was one of Hitler’s closest associates. Hitler thought so highly of him that he once commented that if he ever had a son, he would want him to be like Dietrich. After he was paroled, Dietrich was tried again by a German court for his role in the execution of 6 SA men in June 1934. As a result of his loyalty to Adolf Hitler, who had ordered the executions, Dietrich rose rapidly in the ranks, although he was a Bavarian peasant who was barely literate. He was convicted by the German court and served 18 more months in prison before he was released in February 1959, due to ill health. Dietrich was a swashbuckling figure who was so esteemed by the Waffen-SS men that 6,000 of them turned out for his funeral, after his death on April 21, 1966 at the age of 74.
Hitler’s favorite general, Josef “Sepp” Dietrich
General Sepp Dietrich, charged with being a war criminal
Eventually all 73 of the convicted German war criminals in the Malmedy Massacre case were released from Landsberg prison, including Col. Peiper who was freed on December 22, 1956, the last of the accused to finally walk out of Landsberg….
The bodies of the Malmedy Massacre victims were buried in temporary graves at Henri-Chappelle, 25 miles north of the village of Malmedy. The temporary cemetery was made into a permanent military cemetery after the war, and 21 of the murdered heroes of the Battle of the Bulge are still buried there. A stone wall has been erected as a memorial in honor of all the victims of the Malmedy Massacre near the site of the tragedy.
Sources: Mitchell G. Bard, The Complete Idiot’s Guide to World War II. NY: MacMillan, 1998; Third Reich Factbook; “Obituary: Charles F. Appman / Survivor of Malmedy Massacre during World War II,” Pittsburgh Post-Gazette (August 30, 2013).