The Bordeaux Trial in 1953

It was almost 9 years before any of the perpetrators of the Oradour-sur-Glane massacre, which had taken place on 10 June 1944, were finally prosecuted by a military tribunal in Bordeaux.

Hubert Desourteaux, one of the survivors, estimated that as many as 200 Waffen-SS soldiers in the 3rd company of Der Führer regiment in Das Reich division, had participated in the killing of 642 innocent men, women and children and the destruction of the village. Other accounts say that around 150 soldiers were involved. Investigators were able to identify only 66 of the soldiers in the 3rd company, who had survived the war.

By the time the war ended in May 1945, most of the perpetrators had been killed in action while fighting against the Allies. Adolf Diekmann, the German officer who had led the attack, was lying in his grave in a military cemetery at Normandy. Captain Otto Kahn, the commanding officer of the 3rd company, had allegedly escaped to Sweden, a neutral country.

Brigadier General Heinz Lammerding, the commander of Das Reich division, was living in the British zone of occupied Germany. He had previously been tried and convicted in absentia for his part in the hanging of 99 hostages in Tulle in reprisal for the murder and mutilation of 73 German soldiers who had surrendered to the Maquis, a French resistance group. Lammerding sent a sworn affidavit to the tribunal in which he claimed that he had known nothing about the massacre at Oradour-sur-Glane until it was over; he excused the actions of the SS soldiers on the grounds that they were only obeying orders. As a result of this letter, his address in Düsseldorf became known and, fearing that the court would request his extradition by the British, he moved to West Germany. The West German government then refused to extradite him.

Understandably, the survivors of the Oradour massacre wanted the killers to pay for their heinous crime; they wanted vengeance, but there was a problem which caused justice to be delayed: One third of the soldiers in the 3rd company of Der Führer regiment of Das Reich division, who were the perpetrators of the Oradour massacre, had been born in Alsace. After France surrendered to Germany in 1940, the former French provinces of Alsace and Lorraine had been incorporated into the Greater German Reich and 140,000 young Alsatian men were conscripted into the Germany army. They became known as the malgré-nous which means "against their will." When World War II ended, Alsace became part of France again and the SS soldiers from Alsace were once again French citizens.

After the Liberation of France by the Allies, the provisional French government had passed a war crimes law on 28 August 1944, but it applied only to non-Frenchmen and did not allow French citizens to be brought before a military tribunal. The Waffen-SS soldiers who survived the war were considered by the Allies to be war criminals based on the fact that they were members of a volunteer army which the Allies had retroactively designated to be a criminal organization. This rule did not apply to French soldiers fighting in the Waffen-SS who were exempt because of the French law.

Seven Germans, who were charged with participating in the Oradour massacre, were kept in prison for over 8 years while an investigation was carried out. All but two of the Alsatians in the 3rd company of Der Führer regiment were allowed to go free, including those who had been involved in the massacre. The two Alsatians who were imprisoned were Georges-Rene Boos, who admitted that he had voluntarily joined the Waffen-SS, and Paul Graff, who admitted to killing people in Oradour-sur-Glane.

According to Philip Beck, who wrote a book entitled "Oradour, Village of the Dead," two of the 14 Alsatians, who were put on trial in 1953, had previously served in the French Army from 1939 to 1940 when France surrendered. Six of them had deserted from the SS in Normandy and surrendered to the British. The deserters subsequently joined the FFI, which was the French Force of the Interior, a resistance organization. Out of these six men, two later served with the French Army in French Indo-China, later called Vietnam. Eight of the Alsatians had been questioned as witnesses during the investigation of the massacre.

The survivors of the massacre in Oradour-sur-Glane were demanding justice, but the problem was how to prosecute the Alsatian perpetrators who were exempt under the French law passed on 28 August 1944. This dilemma was finally resolved on 15 September 1948 by new legislation which was aimed specifically at the Alsatians who were involved in the killing of the villagers, some of whom were Alsatian refugees. In fact, some of the perpetrators were from Shiltigheim, a suburb of Strasbourg, the same town from which the refugees had fled.

The 1948 legislation introduced into French law the concept of collective responsibility for members of an organization or group which had allegedly committed a war crime. The concept of collective responsibility was already being used by Great Britain, America and the Soviet Union in their military tribunals conducted after the war. However, under the new retroactive French law, the presumption of collective guilt was not automatic; the judge in each case still had some discretion.

The importance of the 1948 legislation was that Article 3 of the new law specifically included French citizens who had previously been exempt under the 1944 law. Under Article 3, French citizens could now be prosecuted as war criminals who were personally co-authors or accomplices. Under the concept of collective guilt or co-authors of a war crime, the persons on trial were not defendants who were innocent until proven guilty; they were "the accused" who were presumed to be guilty and the burden of proof was on them, not on the prosecution. The alleged war crime was accepted as fact and did not have to be proved by the prosecution. The accused could not argue that a war crime had not taken place, but only that they had not been there when it happened.

Under the new law of collective responsibility, there was no way for an accused war criminal to prove his innocence, except by proving that he wasn't there. If he was there, and he was a member of the SS or the Nazi party, both deemed to be criminal organizations by the Allies, then he was guilty as charged. Even if a soldier accused of participating in the massacre of Oradour-sur-Glane had never fired a shot, thrown a grenade or lit a match, he was guilty of a war crime by virtue of being a member of the 3rd company which was presumed to have destroyed an innocent village for no good reason.

It is important to note that reprisals were allowed under the Geneva convention of 1929, but the massacre at Oradour-sur-Glane was not considered by the tribunal to be a legal reprisal, but rather a wanton act of destruction and murder of innocent civilians by enemy soldiers in wartime.

Under the concept of collective responsibility, a soldier had to not only refuse to obey an order, but also to actively prevent the alleged war crime from being committed, in order to avoid being charged as a war criminal. Even if the act being committed was specifically allowed under the 1929 Geneva convention, such as a reprisal against illegal combatants, the soldier had to anticipate that retroactive laws might be passed if his side lost the war. The victors didn't have to worry about the Geneva Convention. Military tribunals were only for the losers; the victors didn't have to defend themselves in a military tribunal, no matter what atrocities they might have perpetrated during or after the war. Many French villages had been destroyed by the Allies during the fighting to liberate Europe in 1944, but this did not constitute a war crime.

After the new legislation of 1948 made it possible for the Alsatians to be tried, there was a new problem: The Alsatians, who were now French citizens, but had been conscripted into the German Army during the time that they were German citizens, would be sitting in the dock, side by side with the hated Germans, the barbarians who were automatically war criminals under the retroactive laws of the Allies, regardless of their personal behavior in war time. This was a total outrage as far as the people of Alsace were concerned. They demanded that the 13 innocent Alsatians be tried separately and not lumped in with the 7 obviously guilty Germans. Boos was being tried, not only for his part in the Oradour massacre, but for treason, because he had been born a French citizen, but had voluntarily joined the German Waffen-SS after he became a German citizen when Alsace was annexed into the Greater German Reich in 1940. After France was liberated in 1944, he became a French citizen again and thus a traitor to his country.

The other Alsatians testified against Boos, claiming that he had herded women and children into the Bouchoule barn and shot them, and that he had thrown grenades into the church.

The trial was threatening to become the new Dreyfus affair in France. Alfred Dreyfus was a Jewish officer in the French army who was put on trial for treason in the 19th century. The controversy over his trial had led to a suggestion by Theodor Hertzl, an Austrian journalist who covered the proceedings, that the Jews should have their own state in Palestine. The controversy over the trial of the Alsatians created the fear that the people of Alsace might decide to set up their own separate state.

In 1953 when the trial finally got underway, the French government was actively trying to promote unity among the French people, who had fought on both sides during World War II, many of them collaborating with the Germans and others fighting illegally as partisans after France surrendered and signed an Armistice with Germany in 1940. After France was liberated in 1944, even before the war ended, the French had arrested 40,000 collaborators as war criminals. On January 5, 1951, the French parliament enacted the first amnesty law to free the collaborators. By that time, only 4,000 of the collaborators were still in prison and all but 1,570 of them were released.

It was in this atmosphere of forgiveness and amnesty, for the sake of French unity, that the trial began on 12 January 1953. But the Bordeaux trial once again threatened the unity of France since the Alsatians were not given special status in view of the fact that they had been conscripted or drafted into the German Army and then transferred to the Waffen-SS. The Waffen-SS was a mostly volunteer army which demanded extreme loyalty and dedication from its soldiers. Were the Alsatians really drafted into the regular army and then transferred against their will into the SS, as they claimed? Robert Hebras, one of the survivors of the massacre, doesn't think so. He wrote the following in his book entitled "Oradour-sur-Glane, The Tragedy Hour by Hour":

"They all claimed that they had been forced to join the S.S. I think I may be allowed to qualify this assertion. When the Germans annexed Alsace and Lorraine, there is no doubt that many young men were forced to fight on the front. Apart, I suppose, from a few isolated volunteers, there has been no mention of Lorrainers being members of the S.S. Why, then, the Alsatians? I would tend to believe that these conscripts were, quite simply, volunteers. Not one was able to produce a shred of evidence of enlistment."

The accused were all men who were blue collar workers in civilian life; none of them were officers. The highest ranking soldier was Sergeant Karl Lenz, a German. They were soldiers who had merely followed orders, but this was not a defense for war crimes committed in World War II, except for Allied soldiers who were allowed to use this defense if they were court-martialled.

The military tribunal was composed of 6 active officers and a civil magistrate, Monsieur Marcel Nussy Saint-Saëns, a relative of the famous composer, who presided over the proceedings. At the opening of the proceedings, he declared "This trial is and will remain a trial of Nazism." Stressing that it was really the Nazi regime that was on trial, Saint-Saëns went on to say that the massacre happened because some beings who had lost all traces of human dignity were bent on establishing by force a completely materialistic order. It was their blind obedience to the totalitarian state which had brought about this terrible thing.

Even if these soldiers were not members of the Nazi party and had nothing to do with Nazism, they were now being held responsible for the Nazi party philosophy. They were being tried under the same concept that was the basis for the International Military Tribunal in Nuremberg, the concept of a "common plan" in which each of the accused was responsible for the orders given by his superiors.

During the first few days of the proceedings, the lawyers for the Alsatians protested against the law of collective responsibility under which their innocent clients were being prosecuted, side by side with the guilty German war criminals. The judge ruled that the law would stand, otherwise the court had no jurisdiction. The American defense attorneys for the accused German war criminals in the military tribunals held at Dachau had also argued, to no avail, against the concept of a "common plan" under which Germans, who had not personally committed any atrocities, were prosecuted.

While the Bordeaux proceedings were in progress, the deputies from Alsace in the French parliament managed to have the law of collective responsibility brought up for debate before the National Assembly. The representatives from Alsace argued that the Alsatians who had been conscripted into the Germany army had nothing in common with the German volunteers in the Waffen-SS, who had all been designated as war criminals by the Allies. They claimed that the Alsatian SS soldiers were victims of the Nazis, the same as the innocent villagers. An important part of their argument was that the trial of Alsatians side by side with Germans had the effect of approving of the annexation of Alsace into the Greater German Reich. The Alsatian representatives in the National Assembly asked that a new law be passed that would disassociate the Alsatians from the Germans during the proceedings at Bordeaux.

Most people in the French province of Alsace viewed themselves as victims of the Germans; as far as they were concerned, the Alsatians on trial were innocent victims and it was as though the entire province were on trial.

The two provinces of Alsace and Lorraine had originally been German, but were taken over by the French after the defeat of the Germans in the Thirty Years War, which ended in 1648. In May 1871, after defeating the French in the Franco-Prussian war, and uniting the German states into one country under Kaiser Wilhelm I, the Germans took back Alsace and Lorraine. These two provinces became part of France again after World War I, based on the terms of the Armistice which ended the war. When France was defeated by Germany in June 1940, Alsace and Lorraine became part of Germany once again. Today, Alsace looks German, the people speak a German dialect and the national dish is sauerkraut, yet the province belongs to France.

Forty thousand Alsatian soldiers died during World War II and another forty thousand have never been accounted for. Some deserted at Normandy and then fought on the French side. Some Alsatians refused to be drafted into the German Army and were hidden by their families, while others got out of the Army by virtue of self inflicted wounds.

Many Alsatian soldiers were taken prisoner by the Russians on the eastern front and ended up in the Soviet gulags, as the Communist concentration camps were called. Some Alsatian POWs were sent to the notorious camp at Tambov, northeast of Odessa, where they either died or were eventually repatriated in broken health. After their experience with the fascist Legion of French Volunteers against Bolshevism, the Russians were understandably not very sympathetic to Frenchmen fighting in German uniform, and delayed sending the Alsatians back home after the war, even though the French were their Allies. The last malgré-nous to be released from the Russian POW camps came home in 1955, after ten years in a Siberian camp. German POWs were also held in the gulags in Siberia until 1955.

Only the Communists in Alsace supported the idea of putting the Alsatians on trial side by side with the Germans, even though the villagers in Oradour-sur-Glane had had nothing to do with the Communist resistance movement.

On January 27, 1953, while the military tribunal was in progress, the National Assembly voted to exempt all Frenchmen from Article 1 of the 1948 law which established the concept of collective responsibility. The next day, Article 1 was abrogated. Frenchmen could no longer be tried under the concept of collective responsibility, and neither could non-Frenchmen. Now there was a new problem: The law had been changed while the military tribunal was already in progress. Would the charges against the SS men now be dropped? The judge ruled that "Nothing has changed. The court will continue to hear this case in this session and if severance were to be granted it cannot enter into question until sentence is imposed." However, on February 3, 1953, the Alsatians were allowed to be tried separately from the Germans.

The trial continued with the testimony of the survivors. The star witness was Madame Rouffanche, the only woman to survive the massacre, who had been so weakened by a recent illness that she was unable to take the witness stand. The judges had to draw around her seat in the courtroom to hear her testimony. Her final words to the court were "I ask that justice be done with God's help. I came out alive from the crematory oven; I am the sacred witness from the church. I am a mother who has lost everything." The term "crematory oven," which was evocative of the Holocaust, was a reference to the burning of the women and children in the church.

In a dramatic moment during the proceedings, the fire box of a bakery oven, in which the remains of an 8-week-old baby were discovered, was brought into the courtroom. Boos, who was the villain of the group because he had voluntarily joined the SS in 1942, was questioned about the burning of the baby, but he refused to answer all questions about the incident.

In his summation, the prosecutor, Lt. Col. Gardon, said that while he appreciated that the Alsatians had been recruited by force, he demanded their punishment as "unintentional criminals," but criminals just the same. As quoted by Philip Beck in his book, Lt. Col. Gardon said, "The Germans at Oradour were our enemies, but the others were actually Frenchmen and they killed their brothers and sisters."

As quoted by Philip Beck, the prosecutor said in his summation that he had only noticed signs of emotion among them when the plight of their country under Nazi occupation had been described. Otherwise, they had appeared singularly indifferent and unmoved by the account of the death of a French village, a village they had helped to exterminate.

For his closing argument, the defense attorney argued as follows, according to British author Philip Beck:

"The trial, he went on, was basically that of a totalitarian regime. The chief culprits, the promoters of Nazism - many of whom were still alive - could not be brought before them that day so their dupes, their first victims, were made answerable. The accused were not the real culprits. One had to go higher up the ladder of responsibility. When the time came to review the history of the period, the supreme head of the Nazi regime would be seen to bear responsibility not only for victims such as those at Oradour but also for the men who carried out the commands. 'It was he who put these men in uniform,' he concluded, 'It was he who held them in the vice of discipline and, after blacking out their intellect, led them by degrees to be involved in the most appalling bestialities.' "

The trial ended on February 12, 1953. After 32 hours of deliberation, the verdicts were announced by the judges on Friday, the 13th of February, at 2:10 a.m. The accused were brought into court twenty minutes later, on this very cold morning, to hear their sentences read. One German soldier, Erwin Dagenhardt, who had been able to prove that he was not at Oradour-sur-Glane on 10 June 1944 when the town was destroyed, was acquitted. He had already spent over 8 years in prison for a crime that he didn't commit. The other accused men were all convicted, as there was no other defense against collective responsibility which was still the law until the trial was over. There were also 43 men of the 3rd Company who were tried in absentia and convicted.

Georges-Rene Boos was sentenced to death. He was an Alsatian who had volunteered to join an elite German army that only became a criminal organization after Germany lost the war. Nine of the 13 other Alsatians were sentenced to prison terms ranging from 5 to 12 years hard labor. The remaining four were sentenced to prison terms ranging from 5 to 8 years. Paul Graff, who had admitted his guilt before the trial, was sentenced to 8 years in prison. Since he had already served most of his sentence while awaiting trial, he was the only one of the accused who did not immediately file an appeal.

Sergeant Karl Lenz was also sentenced to death. There were no specific charges against him and he had denied being a participant in the massacre. His French attorney had argued that he should be acquitted since the law of collective responsibility had been repealed. Nevertheless, he was given a harsh sentence due to the fact that, as a non-commissioned officer, he had the highest rank of any of the accused. The other six Germans were sentenced to prison terms of less than 9 years, which meant that they had already served their time before the proceedings began. Wilhelm Nobbe, a German, was not brought before the tribunal because he was declared to be insane.

Otto Kahn and Heinz Lammerding were tried in absentia and were both convicted, as were the other soldiers in the 3rd company who were not present at the trial. The Alsatians who were brought before the tribunal had showed up voluntarily for the proceedings. None of those convicted in absentia ever served a day of prison time. Heinz Lammerding continued to work in his profession as a civil engineer in Germany until he died in 1971.

Robert Hebras wrote in his book that Lammerding gave the order for the massacre; the Centre de la Mémoire at Oradour-sur-Glane still puts the blame for the destruction of the village on him.

At the Nuremberg International Military Tribunal in 1946, the top officers in the German military were convicted of violating the Hague convention with regard to Oradour-sur-Glane, under the concept of collective responsibility or participation in a common plan, even though the Wehrmacht or the regular German army was not involved in the massacre and the destruction of the village.

Both sides were extremely unhappy with the verdicts of the Bordeaux trial. Philip Beck wrote the following in his book "Oradour, Village of the Dead":

"When the sentences were announced there was a great outburst of indignation throughout France. They were considered utterly inadequate for such a terrible crime. There was a protest march through Limoges in which 50,000 people are said to have taken part. Notices were displayed reading: 'WE WILL NOT ACCEPT THE VERDICT.'

"On the other hand, the people of Alsace-Lorraine went into mourning over the injustice of the sentences on their countrymen. They were too severe. The mayors of all the towns in Alsace walked in silent procession past the war memorial in Strasbourg. The Bishop of Strasbourg advocated the non-acceptance of the sentences."

On February 19, 1953, the French parliament voted to grant amnesty to the 13 Alsatians who had been sentenced to prison. The vote was 319 to 211 in favor of amnesty with 88 deputies abstaining. The Upper House voted 176 to 79 in favor. They were the conscripts, drafted into the German army against their will. The amnesty had been granted in the interest of national unity. General de Gaulle explained it this way:

"What French person will not understand the inflamed suffering of Alsace? In this serious affair what we have to avoid, above all, is that after having lost so many of her children assassinated by the enemy in the tragedy of Oradour, in addition France lets a bitter wound be inflicted on national unity."

The accused had been tried by a military tribunal, so there was no jury involved. Nevertheless, the amnesty had the same effect as jury nullification. There were strong protests about the fact that a judicial decision had been effectively overturned by the legislative branch of the government. The amnesty applied only to the 13 conscripted Alsatians, and not to Sergeant Lenz, a German citizen, who was technically covered by the retroactive repeal of the retroactive French law against collective responsibility. Boos, who had committed treason, was not included in the amnesty.

On February 22, 1953, the 13 Alsatians were released from the military prison in Bordeux at 3 o'clock in the morning and driven back to their homes in secret. The Germans who had already served their time while awaiting trial were also released that day. Paul Graff, an Alsatian, who had admitted his guilt before the tribunal, was among those who were given amnesty.

In 1954 the death sentences of Lenz and Boos were commuted to prison terms with hard labor; they were eventually pardoned by the president of France and by 1958, all the convicted men had been set free. By 1964, all the French citizens who had collaborated with the Germans had been freed from prison.

When the amnesty became known in the new town of Oradour-sur-Glane, the mayor, Monsieur Fougeras, returned the Legion of Honor with which the village had been decorated.

Robert Hebras wrote:

"The National Association of the Martyred Families of Oradour rose in indignation at the flagrant injustice rendered in the name of national unity; it made a mockery of the victims' dignity. Oradour broke off all relations with the State and the rupture lasted for 17 years. The families also refused to place the ashes of the victims in the memorial raised by the State. The Association was able to finance a monument, erected in the cemetery, thanks to the large number of donations that came from all over, and to exceptional terms of payment granted by the company owned by Monsieur Dagoury, who, himself, lost all his family in the massacre. As for the first memorial, after reconciliation with the State, it was turned into a museum, where a number of items found in the ruins are displayed."

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