Reich Court-Martial exhibit

Global Military Justice Reform contributor Brigadier General (ret) Jan Peter Spijk has kindly provided this post:

Travelling Exhibition Reichskriegsgericht (Reich Court-Martial) in World War II

On August 29, an important exhibition opened in Halle, Germany, to inform the public about the history of the Reichskriegsgericht - the Reich Court-Martial – which formed the pinnacle of National Socialist Military Justice in the years 1936 – 1945.

The history of this military court dates back to 1900, when it was established by the German Emperor after the Prussian-led unification of Germany. It had its seat in a prestigious building in Charlottenburg, Berlin. After World War I, the Weimar Republic in 1920 abolished the separate jurisdiction for military personnel.

However, after the Nazi seizure of power in 1933, courts-martial were reinstated by law, effective 1 January 1934. The Reichskriegsgericht (RKG) was re-established as the Military Supreme Court on 1 October 1936.2 According to the Wartime Criminal Code of Procedure (Kriegsstrafverfahrensordnung, KStVO) enacted by the German Führer Adolf Hitler and Field Marshal Wilhelm Keitel on 17 August 1938, the RKG had jurisdictional competence over acts of high treason, treason and aiding the enemy. Until 1940, the RKG was also responsible for handling ‘severe cases’ of ‘undermining military force’. Under this regime 215 conscientious objectors were sentenced to death, among whom many Jehovah’s witnesses and Seventh-Day Adventists. The court also had sole responsibility for all legal proceedings against highest-ranking Wehrmacht officers.

The RKG consisted of initially three, from November 1941 on four, ‘Senaten’ (Chambers), each consisting of four military lawyers/justices and three (other) officers. Attached to the RKG was the Reichskriegsanwaltschaft (the Reich military prosecution service), consisting of 20 military lawyers. The President of the RKG was in the position to either confirm or nullify the judgments, unless Adolf Hitler, in his capacity as ‘Supreme Justice of the Wehrmacht’, decided to do so.

In full conformity with what became common practice in the regular German judiciaries, the military courts increasingly saw a so-called ‘extended application of the law’, which meant that also ‘Rassevergehen’ (‘racial crimes’) and ‘politically motivated crimes’ could lead to a conviction.

Apart from its role as the Military Supreme Court for military personnel, the RKG also tried several thousand members of resistance groups from the European countries invaded and occupied by Germany during the Second World War. Thus, it was an essential instrument for enforcing the Nazi-policy of occupation and repression.

In the timeframe from August 1939 until February 7, 1945, the RKG decided on 1.189 death penalties, of which 1.049 were executed. Many thousands were committed to prisons, Wehrmacht penal units and concentration camps. The 1941 proceedings against those involved in the German resistance network labelled the Rote Kapelle (‘Red Orchestra’) are particularly well known.

In 1998, 2002 and 2009 the German Parliament adopted laws which nullified ‘national-socialistic criminal convictions, contrary to elementary principles of justice’, including many convictions of the RKG.

The exhibition in Halle, Germany, will last until October. Afterwards, stops are planned in Warsaw, Berlin and Paris, among others.

Military Justice in Germany after World War II

The military courts-martial were abolished on August 20, 1946, by decision of the Allied Control Council. Although the Basic Law of the Federal Republic of Germany provides for the possibility of establishing military criminal courts exercising criminal jurisdiction over members of the armed forces, it has not made such federal courts mandatory. The Federal Republic of Germany has not yet made use of the possibility to establish such a court.

Bundeswehr soldiers will be tried before ordinary – civilian - courts for all offences, including military offences. In some instances the Military Penal Code provides for ‘special jurisdiction’. This is applicable in case of:

- criminal offences committed during a foreign deployment. For these cases the place of jurisdiction is the civilian court in the city of Kempten (Bavaria).

- military disciplinary proceedings pursuant to the Military Disciplinary Code. Serious disciplinary offences are tried by the Bundeswehr disciplinary and complaints courts in Münster and Munich. The Bundeswehr disciplinary and complaints courts are composed of a civilian judge and two military personnel as honorary judges. Appeals are decided at the (civilian) Federal Administrative Court.

Judicial disciplinary proceedings against Bundeswehr members are initiated by so-called ‘instituting authorities’. These are military commanders at division level or higher. These military commanders are supported by an Armed Forces’ Disciplinary Attorney (Wehrdisziplinaranwalt), assigned to him. This disciplinary attorney is a civilian lawyer qualified to hold judicial office and whose main function is that of a legal advisor to the respective military commander.

In practice, the legal advisors assigned to the military HQ’s in the Bundeswehr do not only advise on matters of disciplinary and criminal law, but also on all other relevant legal issues, including the application of International Humanitarian Law (Law of Armed Conflict) during military operations. These civilian legal advisors hold military (officer) rank and will wear uniform when deployed or during exercises.