Nazi War Crimes

Nazi War Crimes, US Intelligenceand Selective Prosecution atNuremberg

Controversies regarding the role of theOffice of Strategic Services

Nazi War Crimes, US Intelligence and Selective Prosecution at Nurembergprovides a balanced but critical discussion of the contribution of Americanintelligence ocials to the Nuremberg war crimes trials process. It discussesthe role of such ocials in mobilising the unique resources of a modernintelligence agency in order to provide a range of important trial evidenceand undertake controversial plea-bargaining negotiations. The book alsoreviews recently declassied US intelligence documents to provide new detailsof how senior Nazi war criminals, such as SS-General Karl Wol, wereprovided with eective immunity deals, partly as a reward for their wartimecooperation with US intelligence ocials, including Allen Dulles, formerCIA Director. This historical case study suggests that both war crimesprosecutors and intelligence ocials can engage in mutually benecialcollaborations. The proviso, Michael Salter argues, is that both sides need torecognise and appreciate the problems that may arise from the fact that theseinstitutitions are required to operate according to dierent, and in some casescontradictory, agendas.

Michael Salter is Professor of Law at Lancashire Law School, UK.

Nazi War Crimes, USIntelligence and SelectiveProsecution at Nuremberg

Controversies regarding the role of theOffice of Strategic Services

Michael Salter

First published 2007by Routledge-Cavendish2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN, UK

Simultaneously published in the USA and Canadaby Routledge-Cavendish270 Madison Ave, New York, NY 10016

A GlassHouse book

Routledge-Cavendish is an imprint of the Taylor & Francis Group, aninforma business

2007 Michael Salter

All rights reserved. No part of this book may be reprinted orreproduced or utilised in any form or by any electronic,mechanical, or other means, now known or hereafterinvented, including photocopying and recording, or in anyinformation storage or retrieval system, without permission inwriting from the publishers.

British Library Cataloguing in Publication DataA catalogue record for this book is available from the British Library

Library of Congress Cataloging-in-Publication DataSalter, Michael, 1957

Nazi war crimes, US intelligence and selective prosecution atNuremburg : controversies regarding the role of the Office ofStrategic Services / Michael Salter.

p. cm.ISBN13: 9781904385813 (hardback)ISBN10: 1904385818 (hardback)ISBN13: 9781904385806 (pbk.)ISBN10: 190438580X (pbk.)1. Nuremberg Trial of Major German War Criminals, Nuremberg,

Germany, 19451946. 2. Nuremberg War Crime Trials,Nuremberg, Germany, 19461949. 3. United States. Office ofStrategic Services. 4. United States. Central IntelligenceAgency. 5. World War, 19391945Military intelligenceUnitedStates. 6. Evidence, CriminalGermanyHistory20thcentury. I. Title.

KZ1176.5.S25 2007341.690268dc22 2006036701

ISBN10: 190438580X (pbk)ISBN10: 1904385818 (hbk)ISBN10: 0203945107 (ebk)

lSBN13: 9781904385806 (pbk)ISBN13: 9781904385813 (hbk)ISBN13: 9780203945100 (ebk)

This edition published in the Taylor & Francis e-Library, 2007.

To purchase your own copy of this or any of Taylor & Francis or Routledgescollection of thousands of eBooks please go to www.eBookstore.tandf.co.uk.

ISBN 0203945107 Master e-book ISBN

I would like to thank those individuals and publishing collaborators toonumerous to list for their professional inspiration and help, and on amore personal and familial note to dedicate this work to Charlie, Glen,John, Leslie, Martin, Naomi and Ray.

Contents

1 Introducing the rationale, aims and methodology 1

Introduction 1Conclusion 10

2 Evidence of the war criminality of the Wol group 11

Introduction 12Relevant oences 14Evidence of the Wol groups involvement in Nazi war crimes 23Medical experimentation 30Funding concentration camps 31The persecution and extermination of European Jews 32Italian anti-partisan warfare 33Wol s institutional position 35Wol s defensive claims in the light of the Nuremberg evidence 37The complicities of Guido Zimmer 54The complicities of Eugen Dollmann 63Dollmanns decision to join the Nazi Party and the SS 65Dollmanns activities as a translator and diplomatic emissary 67Potential defence argument 1: an accidental Nazi? 70Potential defence argument 2: Dollmann as a saboteur? 72Potential defence argument 3: Dollmanns lack of knowledge of SS

war criminality? 75Potential defence argument 4: his lack of any policy-making role 76Potential defence argument 5: lack of involvement in the unlawful

activities of the SS 77Potential defence argument 6: Dollmanns humanitarian

interventions 80Problems with these defence arguments 81Conclusion 84

3 The geo-political context of the peace negotiations surroundingthe OSSs Operation Sunrise 89

Introduction 89Introducing specic contexts shaping Dulles wartime role regarding

SS peace feelers 194445 92Negotiating the conditions of an unconditional surrender 96Conclusion 108

4 Intervening on behalf of Karl Wol 109

Introduction 109Dulles interventions on behalf of Wol with respect to the

International Military Tribunal at Nuremberg 121Intervening to protect Wol from the second round of the

Nuremberg trials 131Wol s escape from prosecution by the British authorities 135The Old Lace de-Nazication trials 146196264: Wol s arrest and German trials 166Conclusion 176

5 Protecting the wider Sunrise group: Zimmer, Dollmann and Wenner 179

Introduction 179Zimmers post-war recruitment and deployment as a US intelligence

asset 180Dollmanns post-war detention, recruitment and deployment as a US

intelligence asset 184The internal controversy regarding the privileged treatment of the

Wol group 202Questions of legal immunity in the light of Dollmanns CIA Name

File 215Intervening to ensure protection 220The internal controversy concerning Dollmanns protection 223Conclusion 243

6 The contribution of OSS ocials to the prosecution of Naziwar crimes 246

Designing the courtroom as a stage for a media event 253Facilitating media coverage: controversies and logistical support 255Organisational charts 257Providing documentary and eye-witness evidence 258

viii Contents

Producing the Nazi Concentration Camps lm 260The immediate impact of screening the atrocity lm 269

7 Gathering and analysing the materials that became the R-Series ofNuremberg trial evidence 277

Waging aggressive war and crimes committed against prisoners ofwar 288

Rothschilds work in gathering and organising the R-Series evidence 298Conclusion 306

8 General Donovans contribution to the Nuremberg trials 307

Introduction 307Donovans attempts to secure a leading role for the OSS 309The courting and honeymoon phases 320Recruiting Donovans OSS personnel 332The ow of OSS sta and support 338Providing evidence from Dulles OSS contacts within the German

opposition 346Donovans assistance with the geo-politics of international

negotiations 351Donovans assistance with American organisations 362The provision of documentation 366Other forms of support provided by Donovan 367Donovans long-range interventions: JulySeptember 1945 369The honeymoon ends in desertion: Donovan departs and plays away 374The irretrievable breakdown 376Excluding Donovan and the OSS lawyers from the economic case 381Prosecuting the German General Sta and the High Command 393The merits of witness or documentary evidence 398Donovans plea-bargaining proposals for Schacht and Gring 410Informal contacts with Leverkhn and Lahousen 424An acrimonious divorce 428Was either leader proved right? 439Conclusion 444

Summation: taking stock 445Bibliography 448Appendix: Abbreviations 452

Index 453

Contents ix

Introducing the rationale, aimsand methodology

Intelligence work is by denition illegal. If it is very eective intelligencework it is very illegal.

(David Whipple, former OSS ocial, who workedunder Allen Dulles in wartime Bern)1

Introduction

This book addresses the various controversies and contradictions aectingthe involvement of one US intelligence organisation, the wartime Oce ofStrategic Services (OSS, 194245, precursor to the CIA, 1947), within theNuremberg war crimes trial programme. In particular it focuses upon theOSSs dual role as a source of incriminating trial evidence and possibleimmunity for war crimes suspects deemed to be valuable for future intelligenceoperations as informants or agents.

The OSS was created in 19422 as a complex wartime organisation. It hadvarious sub-divisions, ranging from the scholarly Research and AnalysisBranch (R&A) through to the espionage work and guerrilla warfare oper-ations of the Secret Intelligence (SI) and Special Operations Branches (SO)respectively; it also included Foreign Nationalities, Visual Presentation andField Photographic Branches.3 The OSS was formally dissolved at the end ofSeptember 1945, but nearly all of its 130-plus war crimes sta remained atNuremberg as employees of a re-branded organisation: the Strategic ServicesUnit (SSU) attached to the US War Department. It is true that gathering

1 Cited in A. Lebor, Hitlers Secret Bankers (London: Pocket Books, 1997), 21516.2 Originally titled the Oce of the Coordinator of Information, headed by General William

J. Donovan.3 For general studies of the OSS, see also B. Smith, The Shadow Warriors. OSS and the Origins

of the CIA (New York: Basic Books, 1983); A. Cave Brown, The Last Hero, Wild Bill Donovan(New York: Times Books, 1982); B. Katz, Foreign Intelligence, Research and Analysis in theOce of Strategic Services, 19421945 (Cambridge, MA: Harvard University Press, 1989);and R. Winks, Cloak and Gown, Scholars in the Secret War, 19391961 (New York:Morrow, 1987).

Chapter 1

potential trial evidence and preparing prosecution strategies was hardly themain wartime aim of the OSS, and its activities on this front only beganin earnest from November 1943. Nevertheless, it remained the case that, atthe end of the war in May 1945, this organisation had still made greaterprogress with trial preparations than any other American or British govern-ment agency, including the legal departments of the Allied armies, or theunderstaed United Nations War Crimes Commission.

Whilst the present book focuses mainly on the role of the OSS, this shouldnot be taken to imply that OSS sta were the only intelligence ocials whowere active in this eld. On the contrary, the American Armys CounterIntelligence Corps (CIC) were also deployed, albeit largely in the far narrowerrole of hunting down middle and lower level war crimes suspects.

This chapter will explain both the objectives of the present book and anumber of the dierent contexts into which readers, and other researchersworking within a range of dierent disciplines, could situate aspects of thedetailed historical case studies that it contains. It is necessary to clarify thereasons why a distinctly interdisciplinary book of this kind is requiredto revise, and partly ll a gap within, the existing scholarship. Hence, thissection also discusses the dierent ways in which war crimes prosecutors havecollaborated with intelligence ocials, and identies the challenges suchinteraction poses to the apparently disconnected and independent academicsub-disciplines of international criminal law and intelligence studies. It willalso indicate the specic criticisms of assumptions behind earlier scholarshipand academic controversies to which the author seeks both to address throughdetailed historical case studies and, through reection upon the implicationsof these case studies for existing debates, to carry forward into the future.

This book is deliberately empirical in nature, in that it seeks to reconstructfrom previously secret archival documents what happened when Nurembergprosecutors entered into a temporary form of collaboration with aspects ofthe OSS. Yet, all empirical work including archival studies will, whether ornot this is recognised, make a series of assumptions concerning the meaning,scope and implications of both the subject matter and the activity of con-ducting viable research. These assumptions cannot themselves be proven orfalsied by reference to empirical facts. This is because they underpin the veryactivity of dening, identifying and gathering such data. Hence, it is reason-able for all researchers to try to state these assumptions as clearly as possible,without entering into the entirely dierent project of seeking to justify thesethrough theoretical argumentation and conceptual analysis. For presentpurposes my assumptions are as follows:

Few, if any, social phenomena are simple, lacking ambiguities, or internalor external contradictions.

Events are rarely, if ever, explicable from a single standpoint that focuseson one type of causal explanation, such as economic interests.

2 Nazi War Crimes: US Intelligence and Selective Prosecution at Nuremberg

No single academic discipline, such as economics, philosophy or psych-ology, is capable by means of its own eorts and distinctive mode ofanalysis of providing a complete and self-sucient account of anyresearch topic.

All research topics are subject to processes of historical change; andtherefore it is important to consider issues of emergence, developmentand destruction over periods of time. Nothing is simply given; every-thing is always in the process of becoming dierent from how it has beenin the past and how it now is.

There can be no ultimate perspective or explanation of any topic thatis complete and sucient to the point of being immune from futurecriticism and constructive development.

Any research ndings and their interpretation by researchers are neces-sarily provisional, contingent and open to future reinterpretation, par-ticularly when new data or theoretical insights become available. Allresearch builds upon and presupposes the work of past investigators, andwill be built upon in various ways by later researchers in ways that cannotalways be predicted or controlled.

Even apparently straightforward events are likely to be dened, perceivedand acted upon in dierent ways by various individuals and groups.Hence, it is necessary for researchers to appreciate and do justice tomultiple accounts of the same events.

Conicts, unnoticed gaps, contradictions and ambiguities are to beexpected, perhaps even welcomed, both in the subject matter and in theprocess of conducting research into them.

Detailed case studies of specic events can be as revealing of wider his-torical and institutional tendencies, as apparently broader sociologicalapproaches that seek to capture and generalise about the entire eld.Indeed, it is helpful if such broader approaches are based upon a seriesof in-depth case studies so that knowledge is developed from the bottomup as it were.

Apparent negatives (such as the failure to prosecute a potential warcrimes defendant) should be recognised as comprising a legitimate partof the research agenda, as are so-called positive dimensions (e.g., theactual trial, conviction and punishment of such a defendant). Indeed, thepositives are perhaps better understood when grasped in the context ofthe so-called negatives.

Based on the belief, stated above, that no single and supposedly self-sucient academic discipline can ever be adequate to any single researchtopic, it is necessary for this book to integrate aspects of at least two suchdisciplines.

In one sense, the following chapters aim to make a contribution to legal,as well as intelligence history, focusing mainly upon events within the Second

Introducing the rationale, aims and methodology 3

World War and the immediate post-war decade. On the other hand, thepresent work also addresses a cluster of issues, possibilities and dilemmasregarding the selective granting of legal immunity that resonate at least asstrongly today as they did during the time in which they originally tookplace.

The present book makes a largely empirical contribution to the startof a wider project of developing a model of the conditions under whichWestern intelligence agencies consider trading legal immunity in return forthe cooperation of leading gures within regimes responsible for mass humanrights violations. One part focuses on the extent to which Karl Wol, formerChief of Himmlers Personal Sta and joint second highest ocial withinthe entire SS,4 was able to avoid legal accountability within the Nurembergprocess for a range of war crimes, partly as a direct result of his wartimecooperation with a US intelligence agency.5

In earlier studies, the present writer has set out, and then rened, a pro-gramme of socio-legal research into newly declassied intelligence les.6

This programme addresses the previously neglected topic of the close insti-tutional relationships that have existed episodically during the last 60 yearsbetween war crimes prosecutors and Western intelligence agencies. Oneargument is that the perceived legitimacy of war crimes trials is governed byimperatives of transparency (including press reporting), reasoned justica-tions for decisions, independence from government control, and respect forstandards associated with due process and the rule of law. By contrast, o-cials working for intelligence agencies necessarily have to work to, andunder, a very dierent set of institutional imperatives. As secret arms of theexecutive concerned with the anticipation and thwarting of threats to a polit-ically dened conception of national security, such ocials cannot operateeectively according to the imperatives governing the legal response to pastwar crimes.

One purpose of the wider agenda behind this book is to encourage aseries of detailed, empirical research projects into a number of proposedcase studies regarding how the considerable logistical resources of modernintelligence agency can assist in the prosecution of those war criminalsresponsible for planning, ordering and committing large-scale human rights

4 R. Koehl, The Black Corps (Madison: University of Wisconsin Press, 1983), 11320, 23445.5 We cannot discount the possibility that Wol s immunity also arose to some extent as one of

the unspoken conditions of his extensive post-war assistance to his interrogators within bothAllied Military Intelligence and then the Nuremberg prosecutors, an important theme forlater investigations.

6 I. Bryan and M. Salter, War Crimes Prosecutor and Intelligence Agencies: The Case forAssessing their Collaboration (2001) 16 Intelligence and National Security 93120; M. Salter,Unsettling Accounts: Methodological Issues Within the Reconstruction of the Role of a USIntelligence Agency Within the Nuremberg Trials (2003) 56 Current Legal Issues 275305.


violations and atrocities more generally.7 Whilst this earlier programme stillremains defensible, it also needs to be counter-balanced by a number of casestudies that, from a liberal human rights perspective at least, highlight thenegative aspects of allowing close institutional collaboration between warcrimes prosecutors and intelligence agencies, particularly the CIA. What isstill needed is a close empirical reconstruction of the events recorded in thepaper trail scattered across various archival collections in Britain, Americaand Germany in order to assess the extent to which the trenchant moraljudgements regarding Wol s alleged immunity from prosecution can now besupported by clear empirical evidence.

The events regarding the combination of immunity deals and a seriesof positive contributions to the preparing of the prosecutions case that char-acterises the historical record of intelligence ocials with respect to theNuremberg process continue to resonate. As Breitman et al. recognise, eventoday: the post-war fate of the perpetrators of wartime atrocities remainscontroversial, and that during the 1980s, the international hunt for JosefMengele and the trial of Klaus Barbie raised questions about how some Naziwar criminals managed to escape post-war justice, or at least postpone it fordecades.8 Furthermore, the Barbie case highlighted the fact that part of theexplanation for such evasions lay in the interventions of US Army CounterIntelligence ocials.9

At this point it is, perhaps, useful to recall some basic historical facts thatneed to be understood before the more detailed material is discussed.The assessments regarding future war crimes policy produced by the OSSResearch and Analysis (R&A) Branch intelligence ocials were, until April1945, largely speculative. This is because Allied war crimes policy was stillundecided. Whilst the Western Allies had established a United Nations WarCrimes Commission at the end of 1942, it remained unclear for a long timewhether German military, diplomatic and political leaders would be dealtwith in a summary fashion under military law, or by means of a costly andtime-consuming international trial. Furthermore, American planning with

7 See C. Hulme and M. Salter, The Persecution of Religion as a War Crime: The OSSsResponse within the Nuremberg Trials Process (2001) 3 Rutgers Journal of Law and Religion,http://www.camlaw.rutgers.edu/publications/law-religion/v3n1.htm; M. Salter, The Prosecu-tion of Nazi War Criminals and the OSS: The Need for a New Research Agenda (2002) 2Journal of Intelligence History, 77119.

8 Breitman et al., 2004, op cit, introduction.9 Ibid. R. Wolfe, IWG Historian, Analysis of the Investigative Records Repository (IRR) File

of Klaus Barbie (Alias Klaus Altmann, Klaus Becker, Heinz Becker, Klaus Behrens, HeinzBehrens, Klaus Spier, Ernst Holzer), 19 September 2001: http://www.archives.gov/iwg/research-papers/barbie-irr-le.html.


respect to the related but more extensive programme of de-Nazication10 didnot begin to take shape until June to October 1944 during the debate on theMorgenthau Plan for the de-industrialisation of post-war Germany. Eventhen it faced a variety of rm objections from War Department ocials.11 Itwas only in April 1945, virtually at the end of the war, that the Allied author-ities issued an Arrest Categories Handbook containing a list of persons to beimmediately arrested.

The Nuremberg programme began within weeks of the end of the SecondWorld War, that is, in early May 1945. It was prompted largely by theappointment of Justice Jackson, a former Supreme Court Judge, as chief ofthe dominant American prosecution organisation, the Oce of the Chief ofCounsel (OCC). The charges contained in the extensive indictment, whichFranz Neumann, de facto chief of the Central European sub-section ofOSSR&A based in Washington DC and later at Nuremberg,12 helped draft,were presented to the defendants on 25 October 1945. These charges, knownas Counts One through to Four, stemmed from the Nuremberg Charter, aninternational agreement negotiated between the Allied powers throughoutthe summer of 1945 which, on 8 August 1945, culminated in a signed agree-ment setting up both an International Military Tribunal and certain newcriminal oences.

The oences contained in Article 6 of the Charter, included crimes againstthe peace (Count Two of the indictment), e.g., planning, preparation, initi-ation and waging aggressive war, traditional war crimes against the laws andcustoms of war (Count Three), such as the maltreatment of captured sol-diers, and crimes against humanity (charged under Count Four), includingthe persecution, enslavement, deportation and murder of civilian popula-tions before or during the war. In addition, Count One of this indictmentalso created the new oence of formulating or participating in a conspiracyor common plan to commit the crimes dened in the Counts Two, Threeand Four.13

The trials themselves opened on 20 November 1945 and lasted for over tenmonths. The lawyers nal presentation of evidence before the InternationalMilitary Tribunal (IMT), which was comprised of eight judges, two eachfrom France, America, Britain and the Soviet Union, occurred on 31 August

10 See Security-Classied Civil Aairs Guides and Correspondence Relating to Conditionsand Institutions in Germany and German-Occupied Countries 19441945: US NationalArchives Modern Military Division (NA), Record Group (RG) 226, Entry 44, Boxes38.

11 L. Niethammer, Das Mitluferfabrik: Die Entnazizierung am Beispiel Bayern (Berlin: Verlag,1982), 52.

12 Neumann was, of course, a member of the radical Frankfurt School of Critical SocialTheory, alongside Herbert Marcuse and Otto Kirchheimer.

13 For additional details, see The Judgement of Nuremberg: 1946 (London: HMSO, 1999), 16.


1946. As an international trial of major war criminals, the 22 individualdefendants who stood trial were drawn mainly from leadership positionswithin dierent sectors of the Nazi regime. Adolph Hitler as Head of State,SS Chief Heinrich Himmler and Nazi Labour Front leader Robert Ley hadcommitted suicide, whilst Martin Bormann, Hitlers private secretary, wastried in his absence even though it has later been accepted that he died inBerlin in May 1945.14 The other key defendants were drawn from the SSor secret police (Ernst Kaltenbrunner), Hitler youth leader (Jugendfhrerdes Deutschen Reiches), Hitlers Foreign Minister (Joachim von Ribbentrop)and other leading Nazi diplomats (Konstantin von Neurath and Franz vonPapen), the German Minister for Armaments and War Economy (AlbertSpeer), the German Army (Generals Jodl and Wilhelm Keitel), Navy(Admirals Erich Reader and Karl Doenitz) and Air Force (Hermann Gring)and colonial government (Hans Frank, Fritz Saukel). Nazi propagandistswere also targeted as defendants, including radio broadcaster Hans Fritzscheand the anti-Semitic publisher Julius Streicher. Hitlers early nance minister,Hjalmar Schacht, was also a defendant, despite the fact that, from 1937onwards, he was increasingly associated with the anti-Nazi opposition (whichincluded acting as an informant to the OSS) and ended the war beingdetained in various concentration camps.

In addition to charges against specic individuals, six criminal organisa-tions were also prosecuted at Nuremberg: the Nazi Party, the SS (InternalSecurity Police), the Gestapo (political police which pre-existed the Nazis butwas later subsumed into a sub-section of the SS after 1933), the SD (SSsoverseas political intelligence agency), Hitlers Cabinet, the paramilitary SA(or brown shirts) and the Military High Commands (OKW). Ultimately,only three individual defendants were acquitted, Fritzsche, Schacht and vonPapen, whilst of the organisational defendants, the High Command, HitlersCabinet and the SA were found not guilty.

Although a number of the defendants who were convicted were killed byhanging, with their bodily remains scattered so that there would be no sym-bolic site for fascist revivalists to return to, the sentences of the remainderwere, in common with most other convicted Nazi war criminals, subjected topolitically inspired commutations of sentence and early release in the early1950s. Once again, these interventions, stemming from the need to retainGermany as a front-line state in the Cold War conict against the Sovietempire, meant that few of the many thousand convicted Nazis, including

14 The OSS had told Jackson that its investigations suggested that Bormann had probably beenkilled in the nal battle for Berlin in May 1945 but that there remained an outside possibilityof him turning up alive. Hence, the le on Bormann remained open in the absence of conclu-sive intelligence, which nally arrived only as late as 1999, following DNA testing of a buriedskull uncovered by building workers in Berlin. See N. Goda, Manhunts: The Ocial Searchfor Notorious Nazis, in Breitman et al., 2004, ch. 15, 1921.


those responsible for acts of genocide, were still in prison after 1953. Onceagain, highly contingent imperatives of political expediency clashed andovercame the supposed independence and universality of liberal standardsof law and justice.

In order to discuss the OSSNuremberg trials relationship, this bookfocuses extensively upon the controversial work of Allen Dulles, who headedthe OSS Bern Field Oce between 1942 and 1945, and, to a lesser extent,Franz Neumann.15 Throughout our analysis of dierent aspects of the rela-tionship between OSS ocials and the Nuremberg prosecutors, it will benecessary to focus on the wartime intelligence role of Dulles, including hisinterventions regarding the selective prosecution and non-prosecution ofsuspected war criminals. Dulles dual role as an important source of bothprotection for Nazi war crimes suspects and incriminating documentaryand witness evidence, expresses, in a microcosm, a series of the ambiguities,contradictions and dilemmas addressed by this work.

At a methodological level, the process of studying such complex relation-ships must avoid the danger of selectively focusing upon the issues fromeither the perspective of Jacksons organisation or exclusively from that ofOSS ocials more generally. It is equally important to reject the assumptionthat this topic must be understood either from the perspective of inter-national criminal law (in isolation from intelligence studies) or vice versa. It isnecessary for scholarly analysis to adjust itself to the object under investiga-tion, not to discard essential elements simply because they fall outside theagenda of any specic and narrowly dened academic discipline, whether thisis international criminal law or intelligence studies.

It is possible to summarise the main requirements for future research on thecollaboration of intelligence agencies and war crimes prosecutors. First, thistopic can be adequately reconstructed and analysed only if these events,negotiations and conicts are understood in the wider context of the chang-ing forms of interaction between the two relevant agencies as the prepar-ations for the trials moved closer to completion. Secondly, the relationalaspect needs to be addressed as an important topic in its own right. A thirdand related point is that such collaboration needs to be analysed froman interdisciplinary approach that has overcome such familiar practices ofdisciplinary insulation and resulting reductionism.

A reductionist orientation, which perpetuates the self-insulation of thedisciplines of intelligence studies and international criminal law, is only cap-able of analysing, say, the purely legal themes as if these could be abstractedfrom other contextual factors. The overcoming of a reductionist approach is

15 On Neumann, see Katz, 1989, op cit, ch. 2; C. Hulme and M. Salter, The Nazis Persecutionof Religion as a War Crime: The OSSs Response within the Nuremberg Trials Process(2002) 3 Rutgers Journal of Law and Religion http://www.lawandreligion.com.


needed because it results in an orientation that eectively excludes the mostinteresting part of the topic, the relational aspects that transcend the com-petence of a single discipline. The antidote to reductionism lies in developingan interdisciplinary, as distinct from multi-disciplinary, approach to thestudy of institutional collaborations. This approach must aim to reconstructand supplement the ndings of relevant research, taking into account andintegrating both of the two particular institutional contexts in question. It isthe overcoming of entrenched reductionism that distinguishes the proposedhybridisation of parts of the two disciplines (or perhaps sub-disciplines) inquestion from, say, the colonisation and/or assimilation of one by the other.

A fourth requirement is for a comprehensive cross-referencing of how warcrimes issues feature within the existing literature of intelligence studies andinternational criminal law. Participation within the Nuremberg processformed one of the many contexts in which the post-war OSS was operating,and vice versa. Hence, the programme of interdisciplinary research developedin the present work must extensively cross-reference and integrate these nd-ings to ensure that this instance of inter-agency collaboration is understoodfrom both sides. This programme requires researchers to produce a broaderaccount of this collaboration so that the ndings of research conducted inboth relevant disciplines can then be re-assessed and, if need be, revised in thelight of insights contained within the scholarship of the other.

The nal requirement is to identify broader interdisciplinary conceptual-isations of issues located within the overlap between intelligence studies andinternational criminal law. Such conceptualisations could provide add-itional momentum towards the reinterpretation of the relationship betweenthe OSS and Allied war crimes prosecutors as this emerged and changedduring the OSSs nal months, and then continued under the auspices of itssuccessor organisations, the Strategic Services Unit (SSU) of the US WarDepartment and, from 1947, the CIA.

If these requirements can be met, the results of such research should con-tribute to the transcendence from within of self-imposed disciplinaryboundaries that, in the war crimes trials area at least, currently restrict thevision and possibilities of both intelligence studies and international criminallaw. This, in turn, could allow for the fruitful expansion of the breadth ofvision of these disciplines through both a process of cross-fertilisation ofexisting research ndings, and by encouraging new empirical research pro-jects precisely in those overlapping topics that mainstream contributors tothese disciplines might not otherwise envisage. The grounds for this are thatthey are too legal for intelligence scholars, and excessively intelligence relatedfor the tastes of international criminal law scholars.16

16 For example, cross-over topics spanning the two disciplines could include a study of issuesarising from the following: the admissibility and credibility as trial evidence of incriminating


Conclusion

This chapter has argued for the adoption of an interdisciplinary approach tostudy of the OSSs role at Nuremberg, which hybridises and supplementsaspects of both Nuremberg and intelligence scholarship in a manner thatgives equal weight to both sides of this evolving collaborative process. Amajor diculty created by the adoption of an inquisitorial orientation is thatit tends to preclude the very possibility of scholars being able to formulate aneven-handed assessment of the ambiguities, contradictions and conicts thatcharacterise the OSSs interventions within the war crimes prosecution eldgenerally. This has resulted in the neglect of important documentation that,to some extent at least, other strands of scholarship have succeeded inuncovering. As a corrective, it is necessary to study the relationship betweenintelligence agencies and war crimes agencies from a more nuanced andsupple interdisciplinary perspective that is receptive to such ambiguities,contradictions and conicts, and which transcends the false alternative ofadopting either a prosecutorial or armative agenda.

Thus, one of the key aims of the present work is to provide a range ofarguments, interventions within existing debates and detailed empiricalanalysis of specic case studies that could help develop a distinctly inter-disciplinary agenda for the study of the institutional collaboration betweenmodern war crimes prosecutors and Western intelligence agencies. Thisagenda suggests that the best way forward is to conduct archival research onrecently declassied intelligence documentation in order to produce a seriesof particular case studies of specic instances where such collaboration has,in fact, taken place.

The next chapter begins the task of interdisciplinary analysis by con-sidering evidence of the war criminality of the Wol group.

materials contained in intelligence les; the potential legal accountability of the leadership ofintelligence agencies before the emerging International Criminal Court for illegal acts com-mitted directly or indirectly by their subordinates; the potential liability of such agencies incivil law for intelligence failures to prevent terrorist atrocities; the potential legal liabilitiesof intelligence ocers who publish their memoirs; the continuing obligation to protect covertsources of intelligence whilst also cooperating with various law enforcement processes;issues arising under international human rights law regarding the partial accountabilityof the state for breaches of legal recognised privacy rights through programmes ofsurveillance.


Evidence of the war criminalityof the Wolff group

It is inevitable, in view of the nature of my work in Switzerland, thatdefendants counsel will from time to time try to drag my name into the[Nuremberg] proceedings.

(Allen Dulles)1

The crimes of the Third Reich were the product of specialisation and minutedivision of labor. Some people planned, some incited, some contributedmoney, and some were the trigger men.(Nuremberg prosecutor, Flick Case, 24 November 1947, transcript 10427)

It is we who have to pay for, we have to admit the bad treatment of the Jews. . . The twelve thousand charred bodies and skeletons theyve found in theconcentration camps naturally speak against us, and they are evidence thatwe will never be able to disprove . . . But I have to add that I too bearresponsibility for the SS on my shoulders.

(Waen-SS General Karl Wol, secretly taped conversion betweenhigh-ranking German prisoners, 15 May 1945)2

He didnt act like a prisoner of war, which he was. At parade rest, hisuniform immaculate, Wol xed his hazel eyes directly ahead. His featureswere tightly controlled, a training exercise he had mastered as No.1 aide to. . . Heinrich Himmler . . . Im not a criminal he said matter of factly. Idid my duty as I saw it to my fatherland . . . I never had anything to dowith the murders of Jews he declared. The word Juden brought a clenchto the miserable sts of the human skeletons on the sidelines. How couldWol have served for at least 10 years as chief of sta to Himmler andbeen innocent? My duties Wol replied involved many things not that. . . His order, as other German prisoners told me and far more importantpeople, was like getting it right from Himmler. Wol even outranked Field

1 Dulles (Wall Street, New York) to Justice Jackson, 6 March 1946: Jackson Papers, Library ofCongress, Washington D.C., Box 102.

2 CSDIC Report, CMF/X 166, Cornell Collection, Rare Books Room, Cornell Law Library,Cornell University, Ithaca NY (hereafter Cornell Collection), vol. xxx, 34.

Chapter 2

Marshall Albert Kesselring, Nazi commander in Italy. Kesselring was triedas a war criminal and convicted. Never Wol.3

The Lord Chancellor on his visit out here asked if there was any chance ofWol being brought to justice, and it is because of this that I have inter-ested myself in the case.

(Capt Somerhough, War Crimes Group)4

Wol is, as we know, a very slippery customer.(R. Shanshalf, JAG, London)5

Introduction

The following chapters focus upon the more legally and constitutionally prob-lematic aspect of the involvement of US intelligence within the Nurembergwar crimes process. They address the policy of the OSS and other branches ofUS intelligence (such as the US Armys Counter Intelligence Corps) select-ively to promise immunity for war crimes. On at least one occasion, which isaddressed through an in-depth case study of the non-prosecution of the KarlWol group of senior SS ocials, OSS/CIA ocials eectively honouredsuch promises by making a series of interventions within the Nuremberg andrelated trial processes.

This chapter discusses the evidence of the war criminality of Karl Woland, to a lesser extent, Guido Zimmer and Eugen Dollmann, particularlyevidence which was at that time available to the Nuremberg prosecutors andother legal ocials responsible for war crimes/de-Nazication trials. It setsout the range of oences with which members of the Wol group could havebeen prosecuted. It also explains the types of actions and levels of intentrequired by the relevant law.

Earlier studies from Simpson, Hirsch and others have claimed that the Wolgroup directly beneted from the interventions of US intelligence as a rewardfor their cooperation within the OSSs, Operation Sunrise.6 However, theseearlier works fail to make a compelling case. This is because the specicallylegal basis for such claims in terms of the range of incriminating evidenceestablishing liability under the relevant headings of international criminal

3 See Cobentz and Freidin, Strange Story of SS General, New York Herald Tribune,23 January 1962.

4 Censorship Intercepts, Internal Memorandum within the Legal Division of the ControlCommission for Germany (British Element), 20 October 1947: PRO, WO 309/347.

5 Shanshalf (JAG, London): General Harster: PRO, WO 208/4671.6 B. Hersch, The Old Boys (New York: Macmillan, 1992), 13435; C. Simpson, The Splendid

Blond Beast: Money, Law and Genocide in the Twentieth Century (Maine Monroe: CommonCourage Press, 1995), 23639.


law generally remains unspecied, or at least insuciently articulated. Yet, ifwe cannot establish that the prosecutors possessed, or had readily available,sucient incriminating evidence to merit prosecution, then it can hardly beclaimed that the Wol group were, in fact, the beneciaries of a legal immun-ity deal brokered by the OSSs Allen Dulles. Unlike these earlier works,which typically adopt a one-sided partisan orientation of potential prosecu-tors and critics, this chapter provides the necessary background context tolater discussions of legal immunity.

These later chapters discuss the specic military and geo-political contextin which the promise of privileged treatment, including at least by implicationlegal immunity, rst emerged as an integral part of the back and forthexchange of commitments that were integral to the OSSs Operation Sunrise.This operation involved a series of on/o negotiations between Dulles andWol and their various intermediaries and subordinates, which culminated inthe unocial surrender of approximately one million German-led forces inNazi-occupied northern Italy. Later chapters examine the range of promisesexchanged between the two principal actors in this particular drama, Dullesand Wol, of which promises of favourable post-war treatment for the Wolgroup were only one part of a far wider series of negotiated terms and condi-tions. These suggest that it is important to appreciate that the broader mili-tary and policy context of negotiations, which involved an exchange of termsand conditions in circumstances where only an unconditional surrender wasocially permitted. Without such an appreciation of this wider context,which anticipated later Cold War conicts, it is not possible to gain a com-prehensive understanding of our topic: that is, how the legal immunity aspectinitially arose, was sustained by the motivations and interests of the dierentparties immediately participating in Operation Sunrise, and then becameincreasingly controversial.

Intelligence agencies have, over the past seven decades, demonstrated anincreasingly sophisticated ability to monitor acts of war criminality as theyoccur and to secure important information on the internal political andmilitary command structure of regimes engaged in genocide. Both activitiesare able to produce incriminating types of potential trial evidence usefulto war crimes prosecutors. However, at the same time, ocials workingfor intelligence agencies have, on occasions, intervened within the legalprocesses related to the prosecution of war crimes, either by withholdingevidence or by actively shielding suspects. This has occurred, for example,to protect actual or potential informants, agents or double-agents whoseprosecution could damage perceived national security interests, or whichwould either jeopardise the retention of useful sources and methods, orundermine the careers of specic senior intelligence ocials. The contro-versial involvement of Dulles provides a most promising case study of thiswider tension.

As already noted, Dulles was a former senior US wartime intelligence

Evidence of the war criminality of the Wolff group 13

ocial with the OSS, based in Berne, Switzerland (194245), and subsequentDirector of the CIA (195361).7 In March and April 1945, Dulles negotiatedthe early surrender of German and Axis forces in North Italy with Wol,a mission codenamed Operation Sunrise by American intelligence, andOperation Crossword by Winston Churchill (as it remained a continuingpuzzle for him). The controversy regarding Dulles involvement with Wolfailed to impede Dulles rapid promotion to head of the CIA during the ColdWar era. In 1951, he returned to the intelligence eld to hold the post ofDeputy Director, and, from 1953 to 1961 (when Dulles was dismissed forthe disastrous Bay of Pigs asco), he held the post of overall CIA Director.8

The fact that the individual at the centre of the controversy was promoted tosuch a senior position, and that his younger protgs also held, or perhapsstill hold, senior posts, provides additional spice to the issue. As Breitmannotes:

Dulles negotiations, codenamed Operation Sunrise, saved some livesand certainly added lustre to his achievements as head of the OSS ocein Switzerland . . . [publicity] about Dulles wartime successes helped himlater to become director of the CIA. Therefore, new evidence about thebackground of Operation Sunrise is historically quite signicant.9

A close examination of Dulles complex relationship to the Nazi war crimesprosecution process illustrates in microcosm many of the wider issues,dilemmas and contradictions already mentioned. As discussed, Dulles, OSSand US intelligence ocials have been subjected to severe criticisms withrespect to their interventions within aspects of the Nuremberg and relatedAllied war crimes trials and de-Nazication processes.

Relevant offences

The oences for which members of the Wol group could have been pro-secuted included not only those already discussed relating to crimes againstthe peace, crimes against the laws of war and crimes against humanity as setout in Article 6 of the Nuremberg Charter, but also organisational liabilityor membership of criminal organisations under Law No. 10 of the AlliedControl Council for Germany, of 20 December 1945. The idea of the crime

7 R. Moseley, Mussolinis Shadow: The Double Life of Count Galeazzo Ciano (Cambridge, MA:Yale University Press, 1999), 154.

8 See B. F. Smith and E. Agarossi, Operation Sunrise: The Secret Surrender (New York: BasicBooks, 1979), 18788.

9 R. Breitman, Record Group 263: Records of the Central Intelligence Agency, Recordsof the Directorate of Operations: Analysis of the Name File of Guido Zimmer: http://www.archives.gov/iwg/declassied_records/rg_263_cia_records/rg_263_zimmer.html.


of membership originated in the United Nations War Crimes Commission; itlater evolved in rules laid down by governments as part of contemporaryinternational law and implemented by the IMT and other courts. At the timein which prosecution of Wol, Zimmer and Dollmann was a real possibility,the only authoritative pronouncement on criminal groups or organisationson the basis of international law occurred during the Nuremberg Tribunal; itwas based upon those specic provisions of the Charter that dened its juris-diction and procedure. The Tribunals interpretation of the meaning andscope of this membership was, to some extent, inuenced by the prosecu-tions discussion. Both the Charter and the IMTs Judgment introduced anew way of responding to organised mass criminality that created a far-reaching judicial precedent for later local trials within national or localcourts. The relevant provisions in the Nuremberg Charter:

Article 9

At the trial of any individual member of any group or organisation theTribunal may declare (in connection with any act of which the individualmay be convicted) that the group or organisation of which the individualwas a member was a criminal organisation.

After receipt of the Indictment the Tribunal shall give such notice as itthinks t that the prosecution intends to ask the Tribunal to make suchdeclaration and any member of the organisation will be entitled to applyto the Tribunal for leave to be heard by the Tribunal upon the questionof the criminal character of the organisation. The Tribunal shall havepower to allow or reject the application. If the application is allowed, theTribunal may direct in what manner the applicants shall be representedand heard.

Article 10

In cases where a group or organisation is declared criminal by theTribunal, the competent national authority of any Signatory shall havethe right to bring individuals to trial for membership therein beforenational, military or occupation courts. In any such case the criminalnature of the group or organisation is considered proved and shall not bequestioned.

Article 11

Any person convicted by the Tribunal may be charged before a nationalmilitary or occupation court, referred to in Article 10 of this Charter,with a crime other than of membership in a criminal group or organisa-tion and such court may, after convicting him, impose upon him punish-ment independent of and additional to the punishment imposed by the


Tribunal for participation in the criminal activities of such group ororganisation.10

The Nuremberg Charter did not, as a matter of law, dene the meaningof either a group or organisation, relying instead upon the InternationalMilitary Tribunal to deal with these issues as questions of fact. The provi-sions set out above lay down the following rules or principles, which granted ameasure of discretion to both the prosecuting authorities and local courts,whilst still removing any possibility for the defence lawyers challenging thecriminal nature of any organisation declared to be such:

(a) A declaration of criminality in respect of a group or organisationcan be made by the Tribunal on condition that any of the defendantsbefore it is a member of such group or organisation.

(b) The declaration is an act within the discretionary power of theTribunal, which is not bound to adjudicate on the issue if it does notdeem it appropriate to do so.

(c) The declaration is conned to establishing the criminal natureof the group or organisation, and no punishment is pronouncedagainst the individuals involved. This is left to the subsequent courts.

(d) Once a group or organisation is declared criminal by the Tribunal,the bringing of its members to trial is within the discretionary powerof the Signatories to the Charter. The declaration does not bindthem to prosecute such members.

(e) An individual brought to trial as a consequence of the declaration isprosecuted for the crime of membership in the group or organisa-tion. This is particularly emphasised in the wording of Art. 11.

(f) The legal eect of the declaration is that, during the subsequentproceedings of the court before which a member is brought to trial,the criminal nature of the group or organisation is consideredalready proved and cannot be questioned.11

A literal interpretation of the terms of (f ), focusing purely upon the letter ofthe law, could suggest that simple proof of membership from September1939 of, say, the SS or another organisation declared criminal would in itselfbe constituted proof of a crime. Hence, the very act of bringing a prosecutionof a member of the SS based upon rm evidence that the persons name wasrecorded as a member of this criminal organisation would be a sucientdetermination of guilt, irrespective of any pleas concerning the relevance oftraditional defences in criminal law. This would reduce the role of the courtto merely rubber-stamping this process before determining an appropriate

10 http://nizkor.com/ftp.py?imt/tgmwc/judgment/j-accused-organisations.01. 11 Ibid.


sentence, bearing in mind any mitigating factors. On the other hand, and asall rst year law students within a common law jurisdiction should know, onecannot rely upon judges always giving a strictly literal interpretation to statu-tory measures, particularly when to do so would conict with traditionalconceptions of due process within criminal trials and the conventional pre-sumption of statutory interpretation that measures extending criminal liabil-ity should be interpreted narrowly.

Hence, the provisions of the Charter were subject to a measure of ambigu-ity. This ambiguity allowed at least two possible bases for criminal guilt ofindividual members. As already noted, the rst possibility was that the dec-laration made by the IMT created a rebuttable presumption of guilt againstevery member, such that all the prosecution is required to do is to establishthat the accused was, as a matter of fact, a member of the organisation. Thiscourse was eventually prescribed for the de-Nazication courts in the UnitedStates zone of Germany. In this case, it had to be presumed, unless and untilthe defendant could establish with clear evidence proof to contrary, that theaccused personally knew of the criminal purposes or acts of the organisationor that he or she was personally implicated in the commission of crimes. Thiswould remain the case even if he or she did not join the organisation on avoluntary basis.

The second alternative interpretation was based, partly at least, on thetraditional presumption against extending criminality liability in the absenceof unambiguous statutory wording. This interpretation would hold that itwas for subsequent courts to positively require the prosecution to prove notonly that the accused was, as matter of established fact, a member of theorganisation declared criminal, but also that he or she knew the relevant factsof its criminal purposes, and was personally implicated in the commission ofcrimes.

In practice, however, neither the Tribunal, nor the majority of the prosecu-tors interpreted the provisions in the rst, literal manner. Justice Jacksonargued that:

there could be no such thing as automatic condemnations, because theauthority given in the Charter is to bring persons to trial for membership.But the points could be raised by the defendant that he had defences,such as duress, force against his person, or threats of force, and wouldhave to be tried.12

In other words, even the Nuremberg prosecutors interpreted the relevantprovisions of the Charter in a manner that still allowed the possibility of acontested trial in which a person who was clearly a member of one of the

12 8 IMT, 1034: http://www.nizkor.org/hweb/imt/tgmwc/tgmwc-08/tgmwc-08-71-07.shtml.


organisations declared criminal could ultimately be acquitted after havingsuccessfully raised one of a number of defences.

Jacksons interpretation appears, however, to place the onus upon a defen-dant to prove his or her innocence by reference to any one of the relevantdefences. The Judgment of the IMT left open any decision regarding whetherthe Charter established a presumption of guilt or innocence. However, it heldthat, with the exception of cases where a member of the organisation inquestion was proved guilty of specic crimes, such as genocide, the tests ofvoluntary membership, and of actual or reasonably presumed knowledge rep-resented the main issues upon which the subsequent courts had to decideeach individual case. This did not clarify the question of whether it was forthe prosecutors or the defence lawyers to prove their cases concerning theselegal requirements.

The IMT made a general ruling that suggested that appropriate standardsof justice, including perhaps a presumption of innocence until proven guiltyand the avoidance of any procedures that resemble judicially sanctioned arbi-trariness, would need to be applied in any contested trial, not least because ofthe possibility of a death sentence. The alternative of sentencing individualmembers to imprisonment and even death without consideration of anydefence arguments or other traditional safeguards associated with the con-cept of a fair trial, would be a dangerously unacceptable violation of basicminimal standards of procedure and due process. The IMT stated that, underthe Charter, there was a crime of membership for individuals who belongedto organisations declared criminal:

A member of an organisation which the Tribunal has declared to becriminal may be subsequently convicted of the crime of membership andbe punished for that crime by death. This is not to assume that inter-national or military courts which will try these individuals will not exer-cise appropriate standards of justice. This is a far-reaching and novelprocedure. Its application, unless properly safeguarded, may producegreat injustice.13

Hence, the Judgment of the IMT accepted US Chief Prosecutor Jacksonsinterpretation that neither the rules of the Charter, nor the category of col-lective or organisational criminality involved in any declaration of organisa-tional criminality, would result in an unqualied or indiscriminate liability foreach member. Such liability cannot be automatically applied to all membersin a mechanical fashion at the expense of due process and judicial discretionto take into account the particular circumstances of each individual case. The

13 IMT Judgment, 6668: http://nizkor.com/ftp.py?imt/tgmwc/judgment/j-accused-organisa-tions.01.


involvement of judges, rather than an administrator, implied that decision-making had to conform with traditional objective norms governing issues oflegitimacy within domestic criminal trials that rule out the arbitrary applica-tion of conceptions of collective guilt and punishment which are insensitiveto the particular degrees of responsibility of specic individuals:

This discretion is a judicial one and does not permit arbitrary action, butshould be exercised in accordance with well settled legal principles, oneof the most important of which is that criminal guilt is personal, and thatmass punishment should be avoided. If satised of the criminal guilt ofany organisation or group, this Tribunal should not hesitate to declare itto be criminal because the theory of group criminality is new, orbecause it might be unjustly applied by some subsequent tribunals. Onthe other hand, the Tribunal should make such declaration of criminalityso far as possible in a manner to insure that innocent persons will not bepunished.14

Hence, the Tribunal rejected a literal interpretation of automatic guilt follow-ing proof of membership of the SS alone. Instead, it required additionalproof of individual or personal guilt of its members before a convictionwould be legally warranted. Arguably, these qualications suggest, withoutrmly deciding the matter in a denitive fashion, that the onus of proof laywith the prosecution not the defence, otherwise it is dicult to see how inno-cent persons would avoid punishment. On the other hand, the IMT did notreject the prosecutions contention that initially there would be a presump-tion of guilt once a person had been proven to be a member of a criminalorganisation but that the defence could rebut this by providing appropriateand compelling evidence to the contrary.

The Tribunal dened criminal organisations and, whilst doing so, it fullyaccepted the tests submitted by the Nuremberg prosecutors which rejectedthe interpretation of the Charter that would allow conviction and sentencingfor simple membership alone, irrespective of any need to establish criminalintent and knowledge of relevant circumstances:

A criminal organisation is analogous to a criminal conspiracy in thatthe essence of both is co-operation for criminal purposes . . . Since thedeclaration with respect to the organisations and groups will, as hasbeen pointed out, x the criminality of its members, that denitionshould exclude persons who had no knowledge of the criminal purposesor acts of the organisation and those who were drafted by the State formembership, unless they were personally implicated in the commission

14 Ibid, 68.


of acts declared criminal by Article 6 of the Charter as members ofthe organisation. Membership alone is not enough to come within thescope of these declarations.15

Clearly, the key points are that those members who had no knowledge of thecriminal purpose or acts of the organisation cannot be convicted; nor canthose who were drafted by the State unless they were personally implicated inthe commission of specied criminal acts. This suggests that not only wasthere a requirement for prosecutors to present credible evidence of the actusreus (criminal deed) of this membership oence but also that they needed todo the same with respect to the accuseds mens rea (criminal intent). Proof ofmens rea alone was insucient. In other words, persons who were compulsor-ily drafted into, say, the military Waen-SS, even if they had prior knowledgeof the criminal purpose of the organisation, were not to be held guilty unlessthey personally were also implicated in the commission of crimes.

These qualications to a narrowly strictly interpretation of the Chartercast additional light on the question of whether, by implication at least, theonus of proof lay on the accused or the prosecution. Although, as alreadynoted, the Tribunal failed to make a ruling on whether, when a member of acriminal organisation is tried, the defence or the prosecutors had to bear theonus of proof regarding tests of personal guilt; and, if so, whether thisrequired proof beyond reasonable doubt. However, the wording used by theTribunal implied that, irrespective of the extent of the burden of proof, thiseither lay with the prosecution who therefore positively had to make a caserather than merely cast doubt on the defence or shifted at dierent points inthe trial.

The Judgment of the IMT provided no guidance on the question of whattype of evidence was needed to either prove or disprove individual guilt by theprosecution or the defence. This gave subsequent courts and tribunals con-siderable discretion in admitting purely circumstantial evidence, particularlywith respect to the mens rea element. It allowed for a presumption of know-ledge of the illegal acts and purposes of criminal organisations based uponthe accuseds rank and position, duties and assignments while serving in theorganisation. With regard to the second requirement, concerning the implica-tions of members who joined the criminal organisation on a non-voluntarybasis, it appears that, once an accused established the compulsory nature ofhis or her enlistment, then the burden of proof that he or she has actuallycommitted relevant crimes switches back to the prosecution.

In short, in the absence of express decision concerning the burden of proofgenerally or at particular points in the trial process, the IMT delegateddecisions on this important point to the discretion of later competent

15 Ibid.


courts and tribunals. In later cases in the American-led Nuremberg Sub-sequent Proceedings, particularly the Pohl and Flick cases, judges explicitlyreinstated the presumption of innocence placing the burden of proof uponthe prosecution.16

The Allied de-Nazication laws were based largely on a codication ofaspects of the IMTs Judgment. The crime of membership was set out inArt. II, para. 1 of Law No. 10: Each of the following acts is recognised as acrime: . . . . (d) Membership in categories of a criminal group or organisationdeclared criminal by the International Military Tribunal. Article II, para. 1(d)reects the declaration made by the IMT that the SS (Die. Schutzstaeln derNationalsocialistischen Deutschen Arbeiterpartie) was a criminal organisa-tion. Hence, it is necessary to review this declaration, not least because itcontains an additional qualication relevant to the time-scale of membership:

The SS was utilised for purposes which were criminal under the Charterinvolving the persecution and extermination of the Jews, brutalities andkillings in concentration camps, excesses in the administration of occu-pied territories, the administration of the slave labour programme andthe mistreatment and murder of prisoners of war . . . In dealing with theSS the Tribunal includes all persons who had been ocially acceptedas members of the SS including the members of the SS-Verbnde,members of the Waen-SS, members of the SS-Totenkopfverbndeand the members of any of the dierent police forces who were membersof the SS . . . The Tribunal declares to be criminal within the meaning ofthe Charter the group composed of those persons who had been ociallyaccepted as members of the SS as enumerated in the preceding para-graph who became or remained members of the organisation with know-ledge that it was being used for the commission of acts declared criminalby Article 6 of the Charter, or who were personally implicated as mem-bers of the organisation in the commission of such crimes, excluding,however, those who were drafted into membership by the State in such away as to give them no choice in the matter, and who had committed nosuch crimes. The basis of this nding is the participation of the organisa-tion in war crimes and crimes against humanity connected with thewar; this group declared criminal cannot include, therefore, persons whohad ceased to belong to the organisation enumerated in the precedingparagraph prior to 1st September, 1939.

16 This is discussed in detail in Trial Of Ulrich Greifelt And Others United States MilitaryTribunal, Nuremberg, 10 October 194710 March 1948: Law Reports of the Trials of WarCriminals. United Nations War Crimes Commission. Vol. XIII (London: HMSO, 1949):http://www.ess.uwe.ac.uk/WCC/greifelt6.htm, 5764.


This declaration included classes of members liable to prosecution for thecrime of membership all persons who had been ocially accepted as mem-bers of any of the branches of the SS, except the so-called Riding units.On the other hand, it excluded those members of the SS who were draftedby the State in an involuntary manner and who had not committed anycrimes personally, as well as those who had ceased to be members before1 September 1939 the outbreak of the Secound World War.

The penalties generally prescribed for any crime under the law includedthe death penalty and imprisonment for life with or without hard labour.In the case of simple membership, that is, not aggravated by complicity in, forexample, crimes against humanity, the rules concerning punishment weresupplemented by the recommendations of the Nuremberg Tribunal, whichlater judges followed and applied.

In short, the legal test for the individual guilt that those considering theprosecution of the Wol group needed to meet consisted in ascertainingwhether Wol, Zimmer and Dollmann became or remained members ofthe organisation with knowledge that it was being used for the commissionof acts declared criminal by Article 6 of the Charter (i.e., crimes againstpeace, war crimes, and crimes against humanity), or whether they werepersonally implicated as members of the organisation in the commission ofthe crimes. In other words, to guarantee a conviction, a prosecutor wouldhave had to present credible evidence that, being members of the SS, eachof these three SS ocials had the relevant knowledge of the criminal pur-poses of the SS and/or were personally implicated in the perpetration ofcrimes committed by this organisation. Since both Dollmann and Zimmerremained in the SS voluntarily throughout the war, no defence lawyer wouldbe in a position to claim coercion. However, the prosecution may still havehad to establish their actual knowledge of the fact that this organisationwas being used by the Nazi leadership for the commission of acts declaredcriminal by Control Council Law No. 10. The exception might have been ifthere was evidence of personal involvement in specic crimes. In principle,it would have been possible to convict Dollmann and Zimmer on two dif-ferent grounds: for example, to hold that Dollmann as an SS-Standartenfhrer possessed actual or, by virtue of his senior rank, imputedknowledge of the criminal purposes of the SS without any requirement toprove personal involvement in any criminal act; whilst the lower-rankingZimmer could be convicted on the basis of factual evidence of his actualcomplicity in such acts of anti-Semitic persecution and looting, irrespectiveof proof of whether he possessed actual or imputed knowledge of thesepurposes. Dollmanns senior rank would have made him more vulnerable tothe admission of circumstantial evidence deriving from his ocial positionand duties, including his personal contacts with the SS leadership. This couldhave led to the presumption that he could not have been in ignorance of thegeneral character of the SS. A court or tribunal could have reasonably


inferred criminal intent from the fact that it would have been impossible for aman of his intelligence not to have known of the commission of the SSscrimes, at least in part.

These rather abstract legal questions need to be borne in mind when con-sidering the details of evidence of the Wol groups complicity in various warcrimes discussed in the next section.

Evidence of the Wolff groups involvement in Naziwar crimes

It is not possible to provide a comprehensive assessment of the full signi-cance and implications of the immunity issue regarding Wol without rstclarifying the full range of war crimes for which he could, in principle, havebeen prosecuted within the Nuremberg process.17 As both Himmlers Chiefof Sta (a senior SS administrator (in post 193643), Highest Police and SSLeader in Nazi-Occupied Northern Italy (194345), and General within theWaen-SS (194445), Wol certainly played a senior role within the policy-making and policy execution aspects of the Nazi regime. These positionswere sucient to implicate him in at least four of the oences successfullyprosecuted during the Nuremberg process.18

Nearly all of the most incriminating evidence was available to theNuremberg prosecutors who detained Wol from August 1945 to mid-1948,and indirectly to Dulles through OSS channels. Justice Jackson, headAmerican Nuremberg prosecutor, had previously identied Wol as a pos-sible defendant in the rst Nuremberg trials of major war criminals.19

According to one of Jacksons representatives in the London negotiationsfrom late June 1945, which selected the defendants, Dulles colleague andOSS General Counsel, James Donovan, played a key role. He contributed toa process in which a list proposed by the Americans of something like 50 to60 defendants, including the senior surviving members of ve of the princi-pal groups and organisations to which they belonged (which would almostcertainly have included Wol as the most senior SS ocial in custody), was

17 The Allied authorities subjected Wol only to a quasi-administrative de-Nazicationproceeding in Hamburg in 194849. It was not until 196264 that the German authoritiessuccessfully prosecuted Wol (see below).

18 Wols biography and ocial posts within the SS is summarised helpfully in Extracts FromTestimony Of Defense Witness SS-General Karl Wol , Trial of War Criminals before theNuremberg Military Tribunal Under Control Council No. 10 (hereafter TWC) (Washington:US Government Printing Oce, 1953), Vol. 5 (Pohl Case), p. 769.

19 See papers desired from R.H. Jackson Files, Jackson Files, op cit, Box 2; Salter and Ost,op cit. Jackson Papers, op cit, 29 May 1945 includes a memo, Meeting at the House of Lords,May 29, 1945, 2.00 pm, discussing potential defendants in which Wol s name is misspelledWoolf .


narrowed down to a provisional list of 24.20 Even then, Wol was includedamongst a small group of 24 potential defendants on whom Dr Kempner,JAGD-WCO, prepared a dossier of evidence or denite leads for JusticeJackson, the majority of whom were in fact later named as defendants.21

Dulles purported to be unaware of Wol s activities and potential liabilitiesas a war criminal during his wartime negotiations. However, OSS informationles record that the General was the master of ceremonies within Nazi-occupied Northern Italy with direct command responsibility second only toHimmler for Gestapo and SS actions there, including the rounding up anddeportation of Italian Jews.22

How was it possible that clear documentary evidence demonstrating that,as high-level state ocial within Hitlers Germany, Wol was complicit in theadministration of genocide could result in prosecution processes that cul-minated in three vastly dierent legal outcomes? Yet this occurred when dif-ferently constituted prosecuting authorities and courts considered Wol scomplicity in the extermination of European Jewry. Following the suicide ofHitler and Himmler, he was the highest-ranking Nazi ocial to survive thewar, and clearly outranked the majority of the defendants tried before therst International Trials at Nuremberg.

The Nuremberg international (IMT 194546) and subsequent trials (NMT,194649) have clearly established that those members of the Nazi regime whoplayed a decisive role in, for example, the organisation of concentration andextermination camps, slave labour and medical experiments on humanbeings can be successfully prosecuted and punished as war criminals. As iswell known, the Nuremberg Charter, in eect the primary legislation for theNuremberg trials, dened a number of oences:

The following acts, or any of them, are crimes coming within the jurisdic-tion of the Tribunal for which there shall be individual responsibility:

(a) Crimes against peace: . . .(b) War crimes: namely, violations of the laws or customs of war. Such

violations shall include, but not be limited to, murder, ill-treatmentor deportation to slave labor or for any other purpose of civilianpopulation of or in occupied territory, murder or ill-treatment ofprisoners of war or persons on the seas, killing of hostages, plunder

20 See S. Alderman, The London Negotiations for War Crimes Prosecutions in JacksonPapers, op cit, Box 112, 18, 5051 (published later in Negotiating with the Russians(New York: World Peace Foundation, 1951).

21 See Telford Taylor to Jackson, Kempner Assignment, 11 July 1945: NA, RG 238, Entry 51,Box 30, Folder defendants.

22 Industries and German Control, report TB-125, 21 April, 1944: NA, RG 226, Entry 16,Box 818.


of public or private property, wanton destruction of cities, towns orvillages, or devastation not justied by military necessity;

(c) Crimes against humanity: namely, murder, extermination, enslave-ment, deportation, and other inhumane acts committed against anycivilian population, before or during the war; or persecutions onpolitical, racial or religious grounds in execution of or in connectionwith any crime within the jurisdiction of the Tribunal, whether or notin violation of the domestic law of the country where perpetrated.23

The Nuremberg Charter also made it clear that oences could be committednot only by those who personally killed or ill-treated individuals but also bythose who were implicated in a senior capacity in the planning, organisationand administration of policies. This remained the case even if these individualsnever left their desks, or issued orders that directly resulted in atrocities:

Leaders, organizers, instigators and accomplices participating in theformulation or execution of a common plan or conspiracy to commit anyof the foregoing crimes are responsible for all acts performed by anypersons in execution of such plan.24

For present purposes, the oence of crimes against the peace (or wagingaggressive war) is of little relevance. However, with respect to his role asChief of Himmlers Personal Sta, Wol could have been prosecuted for actsrecognised as crimes against humanity with respect to the deportation toslave labour and ill-treatment of civilian population, and for exterminationunder respect to the deportation of Jews to Treblinka and other death camps.It is arguable that his administrative involvement in so-called medicalexperiments involving concentration camp inmates also represented a crimeagainst humanity as dened in Article 6 of the Nuremberg Charter. Cer-tainly, correspondence cited in evidence early in the rst international trial atNuremberg indicated that Wol was complicit in the administrative aspect ofthese experiments.25

Between 1945 and 1948, the Nuremberg prosecutors gathered three foldersof evidence relevant to Wol s administrative involvement in war crimes,including the extermination of European Jewry.26 Such evidence was then

23 The full text of the Charter and oences are available online at: http://www.yale.edu/lawweb/avalon/imt/proc/imtconst.htm.

24 Ibid., Art. 6.25 See Nuremberg document 16I7-PS/Pros. Exhibit USA 266, Himmler to Milch, November

1942, referred to in: IMT 3, 164.26 Karl Wol, OCC, 14 August 1948 to Chief of Legal Division HQ CCG (BE), Berlin:

PRO, FO 1030/424 forwarded to Inspector General, Central Legal Oce, Hamburg on27 April 1948.


transmitted to German prosecutors in Wol s 194849 de-Nazicationtrials,27 parts of which regarding the Treblinka transportations, later formeda key element of the prosecutions case in the German trials at Munich(196364). When later called as a defence witness in Wol s domestic warcrimes trial at Munich, Telford Taylor, former head prosecutor for theAmerican-led Nuremberg Subsequent Proceedings trials, recalled that: As tothe question who was prosecuted for what criminal oence, dierent reasons,and not only legal considerations, had been taken into account.28 Taylorsenigmatic statement conceals as much as it reveals. However, it is possible tothink that extra-legal factors (including geo-political considerations andalleged promises of immunity from US intelligence ocials) determinedWol s non-prosecution. This conclusion is, however, not plausible unlessand until it can be clearly established that the decision not to prosecute Wolcould not be justied in purely legal terms, that is, in terms of the lack ofsucient and credible admissible evidence.

Any thorough explanation of this apparent legal discrepancy within thethree dierent criminal justice processes discussed above would need to bothreconstruct and explain the various conicts of interpretation that arose withrespect to the nature and extent of Wol s complicity in wartime genocide.Such a project would, however, require a work extending to at least mono-graph length. By contrast, the second part of the present chapter makes aninitial, and necessarily limited, contribution to that wider research project.It does so by closely reviewing the nature and quality of evidence ofWol s complicities in genocide obtained by the Nuremberg prosecutorsbetween May 1945 and late 1948. The large quantity of evidence that came tolight after 1948, when all possibility of including Wol in the second roundof Nuremberg trials had passed, will not be considered. The ultimate goalof this preliminary study is not to answer the question: What historical evi-dence has emerged over the last 60 years linking Wol to war crimes?Instead, it is to make an initial response to the far narrower question of:Given the quality of the evidence of Wol s complicity in such criminality

27 The Nuremberg materials used in the 1948 trials were: exclusively documentary, consistingof captured letters, signed by Wol or copies which had been passed to him. Generally Woldenied recollection of the precise letters and in some cases tried to explain that his signaturewas a mere pro forma signature. In cases where he received copies, he alleged that such copieshad not been sent on to him at the Fhrerhauptquartier, or if they had, he had no recollectionof them. Reportedly when questioned as to Jewish persecution, Wol admitted knowledgeof the rounding up and detention of Jews only because they were Jews from 1938 onwards,and their forcible deportation to the East. Yet he insisted he had helped specic individualsescape persecution, such as Garn Gork, and that SS measures against the Jews were not partof his duties, and that he was glad he did not have to have any ocial connection with them.Furthermore, his defence lawyer argued that Wol acted under inescapable compulsion:Legal advisers report on Trials of Karl Wol, 9 November 1948, 2: PRO, FO 1030 /424.

28 Case Wol, op cit, 51, a-112, 496.


that, at the time, was in their possession, why did the Nuremberg prosecutorsdecide not to charge Wol with crimes against humanity under theNuremberg Charter? Given the restricted scope of the present research, itwould be perverse to introduce material that, despite its inherently interestingnature for other, more widely dened research projects, was unavailable tosenior Nuremberg prosecutors when they made their decisions not to pros-ecute Wol for war crimes.29

Waen-SS Major General Wol, Himmlers former Chief of Sta (193643)and Highest SS Police and SS leader for Northern Italy (194345),30 wasvulnerable to being successfully prosecuted for crimes against humanityunder Article Six of the Nuremberg Charter of August 1945. This at least issuggested by a wide range of materials, including court transcripts,uncensored archival sources,31 and relevant scholarship. Wol s prosecutioncould have taken place in either the rst or second Nuremberg war crimestrials, or as part of the British war crimes trials in Italy 194647.

On the other hand, it is necessary to acknowledge, at the outset, that thespecically legal evidence discussed in later sections of this book amountsonly to a sub-set of the total historical evidence to date. The latter expandswith every successive release of, for example, formerly classied intelligenceles relating to Nazi war crimes. The fact that this study is only concernedwith a sub-set of the total available historical evidence means that the follow-ing incriminating documentary evidence will not be discussed in the presentstudy:

29 On the other hand, although forming no part of the central argument, references to latermaterial will, on occasions, be cited in footnotes in order to assist future researchers withdierent agendas to those of the present project.

30 R. Koehl, The Black Corps (Madison: University of Wisconsin Press, 1983), 11320, 23445.The discussion of Wol s character is rather mixed in the original Sunrise cables and cor-respondence. See cable 538, Sunrise, Airey to AFHQ, no date: NA, RG 226, Entry 139,Box 60, Folder 554, noting Wol was: a strong personality, active and intelligent otherwisenothing much to recommend him above others of his kidney. Has crafty appearance . . .

31 Previously unknown documentation exists in General Donovans Nuremberg Files depositedin Cornell Law School, and, unlike the documentation stored in the US National Archives,Modern Military Division II, Washington DC, still remains unweeded by the CIA. Incollaboration with Dr Kerstin Von Lingen, the present writer has reviewed the full range ofavailable archival evidence from the National Archives in Washington DC, the PublicRecords Oce in London, the Institute of Historical Research (IFZ) at Munich and GeneralDonovans extensive Nuremberg les stored at Cornell Law School, Cornell University,Ithaca, NY. Each of these collections contains materials relevant to the immunity alleg-ation that are not available in other collections. On the Cornell Collection, see M. Salter,Unsettling Accounts: Methodological Issues Within the Reconstruction of the Role of a U.SIntelligence Agency Within the Nuremberg Trials (2003) 56 Current Legal Issues 275305;Memorandum to General Donovan, 20 November 1945: Donovan Archive, Subdivision 11,Storm Troops, Gestapo, SS and SD, Vol. 53.107.


1 Wol s correspondence with Chief of the German Administration inSerbia, i.e., Staatsrat Harald Turner, over the use of mobile gas-wagonsto kill Jews.32

2 A letter personally dictated by Wol advising Himmler of a forthcomingmeeting discussing the resettlement of ethnic Germans into the Germanoccupied Crimean region in which Wol notes in passing and withoutcomment that the indigenous population would be subject to detentionand liquidation by action squads.33

3 The signicant critique of Wol s claims regarding the small number ofSS ocials involved in mass extermination that emerged during recentHolocaust denial trials,34 including expert historical testimony commis-sion specically for these trials.35

4 Documentary and witness testimony regarding Wol s complicities thatwas presented during post-war domestic war crimes trials held after1948.36

5 The results of researchers archival discoveries from the early 1960s thatwere fed into Wol s 196364 trials in Munich, Germany. This includespotentially key correspondence, dated 17 September 1942, from Chief of

32 For the relevant extract of this letter, see H. Friedlander and M. Sybil (eds.), Archives of theHolocaust, Vol. 11, Part 2, 1992, 28486: http://www.holocaust-history.org/19420411-turner-wol/. Sereny provides a fuller translation, op cit, 353, translating an original documentavailable from the Institute of Historical Research, Munich. For more background infor-mation to these killing devices, see M. Beer, The Development of the Gas-van in theMurdering of the Jews, published online at http://www.nizkor.org/hweb/camps/chelmno/sonderdruck.html, and http://weber.ucsd.edu/~lzamosc/chelm10.htm. Breitman notes that,in mid-1940, Walter Rau, who was later to become of Wol s most trusted SS subordin-ates in North Italy, was involved in the design and testing of early gas-wagons, and thatWols link with Turner formed part of his wider trouble-shooting role administrativeremit and SS liaison work with Nazi Foreign Minister Ribbentrop. See R. Breitman, Himmler,The Architect of Genocide (London: Grafton, 1992), 121, 197. Rau s role was known toNuremberg prosecutors. See Nuremberg document PS-501: Collection of four documents inexecution by gas, 7 September 1945.

33 J. Von Lang (co-author: C. Sibyll), Der Adjutant. Karl Wol: Der Mann zwischen Hitler undHimmler (Frankfurt/M., Berlin: Ullstein, 1989), 178 (all quotations are based on privatetranslations carried out by Anja Becker).

34 David Irving v Penguin Books and Deborah Lipstadt, QBD, 1996 -I- 1113, 11 April 2000,Court 36, Royal Courts of Justice, judgment given by Mr Justice Gray, paras. 6.13738. I amgrateful to Davenports solicitors for providing me with a full transcript of this case.

35 Presented by the Evans Report commissioned by Davenports available from: http://www.holocaustdenialontrial.com/evidence/evans004.asp. The start of this lengthy and schol-arly report from the Cambridge History Professor is published online at http://www.holocaustdenialontrial.com/evidence/evans001.asp.

36 See Rediess to Wol, 7 November 1940, contained in the indictment of Wilhelm Koppefor his trial in Berlin in 1964, 8 Js 52/80, 18889/T 175, Roll 60, Federal Records Centre,Alexandria microlmed collection. NARA guide to German records.

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