The man seated at the centre of the dais spoke very slowly, almost regretfully, as though he were grateful for the pauses for interpretation.“The sentence of this court is that you suffer death by being shot. The findings of guilty and the sentence are subject to confirmation. The proceedings are now closed.”
The man standing at the centre of the floor held his body in its vise of immobility. He took a pace backward and bowed, waited an instant longer for his guards to fall in, and then made a brisk left turn. As he marched from the room his head was a fraction of an inch higher than usual, his drawn face a fraction of a shade paler than usual. His heels rapped against the flat hush like an eerie, far-away gavel summoning the attention of a terrible past and an unknown future.
The sentence of death against Kurt Meyer, accused and convicted German war criminal, was never carried out.
Nor, four years after the sentence was passed by a Canadian military court, has the extent of Kurt Meyer’s debt to the past or the extent of his meaning to the future been really clarified.
The disagreement over the rights, wrongs and maybes of the most bizarre, contentious and possibly significant trial in the history of Canadian law is not quite as loud today as it was when Major-General Chris Vokes, the then commander of the Canadian occupation forces in Germany, precipitated an international furore by commuting the penalty to life imprisonment. But the disagreement is no less deep-seated.
At one extreme there are hundreds of thousands of Canadians who still believe Meyer should not have been allowed to live; at the other extreme some, at least, who believe he shouldn’t even be in jail.
The facts of the Meyer case are these:
As Standartenführer of the 25th Panzer Grenadier Regiment of the 12th SS Division Meyer commanded German soldiers who, during the first bloody days of the Allied landings in Normandy, shot to death or clubbed to death at least 41 unarmed Canadian prisoners of war.
He is the only enemy soldier who has been tried under the War Crimes Regulations (Canada), an order-in-council enactment of August, 1945, which sought to lay down standards by which enemy war criminals could be judged for their actions between 1939 and 1945 and to set precedents which it was hoped might deter their possible imitators in possible wars of the future. Working in collaboration with the United Nations War Crimes Commission, virtually all the Allied nations had adopted similar regulations soon after the end of the war in Europe. Meyer’s trial in December, 1945, which was held before a court of one major-general and four brigadiers at Aurich, Germany, was the first trial of a German fighting soldier or field commander under any of these enactments—Canadian or otherwise—and therefore it was deemed to be of a significance far beyond the fate of any one man, the proceedings of any one court, or the laws of any one nation.
He faced six separate charges. One of “inciting and counseling troops under his command to deny quarter to Allied troops,” one of directly ordering troops under his command to shoot seven Canadian prisoners of war, and four others of being “responsible” for, although not ordering, four separate mass killings of defenseless P.O.W.’s.
One of the charges of “responsibility” was dropped by the prosecution. On another charge of “responsibility,” this one involving 23 of the 41 proven victims, he was acquitted. He was also acquitted of the charge of giving a specific order for the execution of specific prisoners. On the other two charges of “responsibility,” which applied to the shootings of 18 members of the Third Canadian Division in two separate incidents, he was found guilty. He was also found guilty of the charge of having incited and counseled his troops to deny quarter.
These are the minimum facts. What is the big and ultimate fact? What is the one fact that will matter above all the others long after Kurt Meyer—SS man, proud graduate of the Adolf Hitler Lifeguard, eager warrior, nerveless, desperate prototype of much that was bad and what little there was of good in German fascism—has gone to his final rendezvous with his tortured Nazi gods?
The Precious Principles
Was Kurt Meyer guilty?
Was he proven guilty according to procedures and according to a body of law that will serve as a practical, workable guide for future generations of Canadians without challenging their heritage of Anglo-Saxon justice?
Did he receive a fair trial? Was he tried under impartial rules? Were these rules—impartial or not in themselves—administered impartially by the court that tried him?
As a reporter who covered the Meyer trial I say “no.”
I came back to Canada saying “no” to all these questions, and to anybody who would listen—and perhaps it wasn’t strange that, in the country’s mood of four years ago, with its memories like open wounds and its dead not yet all counted, there weren’t many who cared to listen.
I have just been to Ottawa re-examining the records of the trial and I still say “no.”
Beneath its gathering dust the record still seems to say what it seemed to be saying four years ago in the alternately hushed and tumultuous little courtroom in northern Germany. Among other things it seems to say:
That, under the mantle of Canadian law, Meyer was tried according to rules which contradict some of the first and most precious principles of Canadian law.
That although these rules paid lip service to the fundamental doctrine that the accused is innocent until he is proved guilty they included a reversible clause which, once it was proved that crimes had been committed (not necessarily by him or by his orders or with his knowledge or consent), made him guilty until he proved himself innocent.
That on such questions as the admissibility of evidence the court was authorized to, and sometimes did, make up its rules as it went along, without real restrictions of any kind and frequently to the disadvantage of the accused.
That the chief witness against Meyer, a witness without whose testimony the case for the prosecution would have been weakened to the verge of debility, finished his first statement against Meyer with a threat of death hanging over his head. That this witness had been interrogated outside the courtroom at least eight different times and that, under the elastic rules of procedure, the opposing counsels were permitted to read excerpts from each of his eight depositions and to put him on the stand, in person, twice. That, in spite of many months of preparation and rehearsal, he frequently contradicted himself on both minor and major points of evidence. That in its most damaging essentials his evidence was supported by no other witness and at least partially contradicted by half a dozen.
A Voice Across the Abyss
If anyone were to ask, “Did Meyer get his deserts?” the record’s answer might be “yes,” if only because of what it told, out of Meyer’s own mouth, of his place in and his apparently unshaken faith in the violent, demagogic world of Adolf Hitler.
If anyone were to ask, “Did Meyer get full justice?” I believe the record’s answer could not be “yes.”
In the little paneled courtroom the picture of Kurt Meyer emerged in sombre, evocative flashbacks, like a documentary film narrating the history of German fascism from its rise to its ruin. The dead legions marched again, the supermen strode across the face of Europe with undiminished glory, and an old comrade alternately exhorted and applauded them in a voice that was sometimes strident with pride, occasionally close to tears for the memory of what might have been.
Kurt Meyer, unsuccessful salesman at 16, unemployed coal miner at 18, obscure harness cop at 24, had hitched his wagon to the star of national socialism in 1934. When he was accepted as a 25-year-old volunteer in the Leibstandarte Adolf Hitler, the Führer’s personal guard regiment, he was carrying party card No. 316,714 and SS membership No. 17,559.
When the Wehrmacht struck at last Meyer struck with the spearheads. His rise was swift and unquestionably well deserved. There had been a special name for this new, exciting kind of war—blitz (lightning). There had been a special name for the young SS commander who rode with the reconnaissance columns—Schnell (speedy). The place names along the route were still heavy with nostalgia for Speedy Meyer.
After commands in Poland, Romania, Bulgaria, Yugoslavia, Greece and Russia, Meyer switched to tanks in Normandy and became Panzer Meyer. He received his second wound and his 11th decoration.
To the court he talked well and willingly of his battles. Like a lonely voice calling across a vast and bridgeless abyss, he called again and again to the vanished kameraden, pleading for the betrayed doctrines of blood and iron.
Once he sat forward intensely and repeated part of a speech he had once made to the young fanatics of the Hitler Jugend’s military arm:
“We are here in Normandy, and we here in our fists have the weapons of the German people . . . If the Allied forces take a stand for the invasion, the reprisals or revenge will not be achieved through V-weapons, but revenge will be achieved through our personal action, through our blood, through our spirit of attack and through the annihilation of the enemy forces.”
Discipline In the Family
And from another speech: “After the end of each war, every prisoner should be in a position to prove that he fell into captivity guiltlessly—I myself have sworn myself, my family and my wife, that I myself would not willingly go into imprisonment. The last bullet belongs to you.”
The trial produced no more dramatic scene than the moment, taut, moving and somehow terrifying, when Meyer abruptly dismissed the surroundings from his mind and spoke directly to his wife. With one of their five small children Frau Meyer had come to Aurich to be near her husband, and on most days she sat alone toward the rear of the courtroom, a pallid, mouse-like woman surrounded by an infinity of sorrow.
She had been allowed to see Meyer briefly in his cell, but always with a guard in close attendance and under instructions that Meyer was not to be allowed to say anything which might have suggested how he wished his children brought up, ideologically.
One day the prisoner expressed a willingness to explain the principles which he had applied in the training of his regiment.
As he began, his blue eyes were alternately hard and caressing as they sought and held the eyes of the woman in the 10th row. He spoke now proudly and demandingly, now gently and persuasively, and the tortured, hopeless face of the woman became radiant and alive.
“The discipline of my young soldiers was good,” he said, “and was based on the foundation of the family. Because of their youth, the leadership had to find a new way in the education of these men. Between officers and men, apart from the ordinary officer relationship, there was a brotherly relationship established. Parents were far-reachingly included into the education. For the troops, there was given a prohibition of smoking and of alcohol. Every relationship with women was prohibited for soldiers up to the age of 18.”
Meyer paused. He resumed more softly. “In social respects, the ideal of motherhood was held high to my men in the motto: ‘The mother fights, lives, sacrifices and dies for the children’. In religious respects, my men had freedom. I called to them: ‘God cannot be proved, but He is to be believed. Man only becomes man when, through his conscience, he feels himself responsible to his God. A soldier who does not believe in God cannot fight’. For their fighting motto, my soldiers were given the idealistic point of view of soldierhood, in brief, ‘I am nothing, we are everything.' "
So much for the prisoner. What of the proceedings?
Meyer was prosecuted by Lieut.-Col. Bruce Macdonald, of Windsor, and defended by Lieut.-Col. M. W. Andrew of Stratford, Ont., both lawyers in civilian life. Like the court president, Major-General Harry Foster, and the four other red-tabbed judges, both Macdonald and Andrew had served with distinction in combat units of the Canadian Army. Each man pressed his case with skill and vigor. Each man, like the officers of the court, was under an essential handicap; he was working with laws foreign to his experience and his traditions as a Canadian—conqueror’s laws, freshly minted and unclarified by a single precedent.
Inevitably, the prosecution claimed, and was granted, advantages over the defense which it would neither have asked nor expected had the new laws been in harmony with the basic tenets of Anglo-Saxon law.
The Canadian War Crimes Regulations, which closely parallel similar regulations enacted at the same time by the United Kingdom, sought to make possible the enforcement and workable interpretation of the “laws and usages of war” as approved by the Hague Convention of 1907 and the Geneva Convention of 1929. All the major Powers, Germany included, had signed the Hague and Geneva agreements, which attempted to define war crimes, but left it up to individual nations to punish them in their own individual ways.
A German Started Hollering
The Canadian regulations specify that the fundamental procedure for a Canadian war crimes trial shall be the same procedure laid down for a field general court-martial. But they authorize a Canadian court trying a suspected war criminal to disregard, if it sees fit, virtually all the rights and safeguards to which a defendant is normally entitled in a Canadian criminal or military court.
The regulations say the court “may take into consideration any statement or document appearing on the face of it to be authentic, provided the statement or document appears to the court to be of assistance in proving or disproving the charge, notwithstanding that such statement or document would not be admissible as evidence in proceedings before a field general court-martial.”
The regulations say that “Any document purporting to have been signed or issued officially by any member of any allied or enemy force or by any allied, enemy or neutral government shall be admissible as evidence without proof of the issue or signature thereof.”
The regulations say that any statement made before trial by an accused or by any witness as such trial, whether or not such statement was made on oath, and whether made before or after or without the giving of any caution shall be admissible as evidence for all purposes.
The regulations say that once it has been proved that members of a military unit or formation have committed more than one war crime the commander of that unit or formation may be considered guilty of responsibility for those crimes, unless he proves himself innocent of responsibility.
Over and above these specific amendments to traditional Canadian courtroom procedures, the War Crimes Regulations (Canada) close with a clause that takes 21 words to say that anything goes. “In any case not provided for in these regulations,” Section 17 says, “such course will be adopted as appears best calculated to do justice.”
That disarmed Canadian prisoners were killed in Meyer’s battle area during the first week of the Normandy fighting was established even to the satisfaction of Meyer himself. Overrun in Meyer’s counterattack against the village of Authie on June 7, 1944, at least 23 members of the North Nova Scotia Highlanders had been shot down by their captors either amid the red chaos of the battlefield or on the way back toward Meyer’s regimental headquarters. Now, 18 months later, some of the survivors came to bear witness.
Q: Will you describe anything that occurred as you were being moved away from the place of capture?
A: We were marched perhaps about 300 yards up toward this big field and we passed a German soldier lying down on the ground. He was wounded and was getting the attention of a medical orderly. He started hollering at us and we passed him and went another 40 or 50 yards and we met a wave of advancing Germans and the German that seemed to be in the lead started hollering—I don’t know what he was saying but was just hollering there and he pulled out a revolver and started shooting at us and at the same time this wounded soldier, he started shooting at us too with his rifle.
Q: Did he hit anybody?
A: Yes, sir. The boys started falling and I was looking at the wounded fellow and then I was looking at the guy who was doing the shooting up front. A lot of our fellows fell down wounded and when I came up to Lance-Corporal Orford, he grabbed me by the arm and then he was shot.
Q: Now, describe the shooting of Orford.
A: Lance-Corporal Orford grabbed me by the arm, sir, and he hollered, “Oh, mother don’t,” and then it seemed to me like he grabbed his belly and sank down on the ground.
Q: Now, what did you do?
A: Well, sir, I dove on the ground and then after that there was no more firing and by that time Conrad and Dolan were moving about 10 feet so I joined them.
Q: What happened to the other nine prisoners who had previously been in your group? Did they follow along as well?
A: No, sir, I never saw them afterward.
Possibly because the court knew that, among the men who fought the war at the level of the slit trench, there were “spontaneous” uncalculated and unpreventable shooting of prisoners on both sides, Meyer was acquitted of responsibility for the Authie massacres.
The prosecution used its heaviest and most effective artillery in trying to convict him of the general charge of “inciting and counseling” his troops to deny quarter and to establish his responsibility for two multiple killings in which 18 Canadian captives were killed and secretly buried at his regimental headquarters at the Ancient Abbey of Ardenne, a hamlet northwest of Caen.
On the charge of inciting and counseling to deny quarter there seemed little reasonable doubt that, in their by no means rare moments of grandiloquence and bombast, either Meyer or some of his most trusted officers, or both, had boasted to the teen-aged soldiers they were readying for battle: “My unit takes no prisoners.”
Four alumni of his regiment testified they had heard the remark uttered, although their memories of the circumstances varied widely. One insisted that Meyer had circulated it through the ranks in the form of a secret written order. Another said he had made it orally during the course of a drunken speech at a regimental party.
Officers Stopped a Massacre
Whatever impression it had made in the barracks each of the nine German witnesses who appeared were agreed that the remark or order was never interpreted literally on the battlefield, nor, in their opinion, was meant to be. Two of the witnesses who remembered having heard it also remembered that after the unit went into action they were offered special leaves for bringing in live prisoners.
Two Canadian soldiers told of seeing battlefield massacres stopped by German officers or N.C.O.’s.
The defense was able to argue that more than 200 Canadian prisoners passed through Meyer’s regimental headquarters during the first few days of the Normandy fighting and came to no harm. If Meyer had ever intended the shooting of prisoners to be a regimental policy, the policy wasn’t carried out.
One witness testified, nevertheless, that Meyer had specifically ordered one killing of prisoners. On the morning of June 8, 1944, SS Mann Jan Jesionek, 19-year-old Polish conscript, had been on duty as a dispatch rider at Meyer’s headquarters in the ancient abbey.
About 10 o’clock a German soldier marched in seven Canadian prisoners, Jesionek told the court. Jesionek followed the escort into the chapel of the Abbey in time to hear him report to Meyer himself.
“What shall we do with these prisoners?” Jesionek said he heard Meyer say. “They only eat up our rations.”
Then, according to Jesionek, Meyer talked in an undertone with an officer. He turned and said, more loudly, to the small group of headquarters personnel around him: “In future we will take no more prisoners.”
Jesionek went back outside a few moments later and saw a German officer talking to the seven Canadian prisoners. They were talking in English, which Jesionek didn’t understand, but it was his impression that the officer was jeering at the prisoners, at least one of whose eyes suddenly “filled with tears.”
Then, Jesionek continued, one at a time the seven Canadian soldiers shook hands with their fellow prisoners and walked through a little gateway leading from the courtyard of the abbey to a little garden at the rear. A German sergeant-major waited on the other side and shot each man as he emerged in the garden.
Jesionek had told his story first in an American prisoner of war cage at Chartres. Over a period of several months he had repeated its substance several times in interrogations in Paris, London, Bayeux and during a special trip to the abbey itself. Each interrogation was recorded and extracts from all his pretrial depositions were read back to Jesionek by both the prosecution and by the defense.
Although Jesionek never wavered on a major point there were minor inconsistencies in the several versions of his story. As he told it at Chartres, for instance, he himself had heard Meyer give a direct order to execute the seven Canadians. In another, Jesionek neglected to repeat the alleged order about taking no more prisoners in future.
On many circumstantial details his evidence was incompatible with the evidence of other witnesses. He said that he saw Meyer in the abbey chapel at about 10 o’clock in the morning. Meyer insisted he had been on a personal tour of his battalions at that time, hadn’t returned until about noon and then had gone directly to the tower to survey the battlefield. Two German officers supplied partial corroboration.
Was the Gateway Blocked?
Jesionek said that Meyer had been dressed in a long, black rubber coat in the abbey chapel. Meyer said that he had never worn anything but the standard camouflage uniform of his division.
Jesionek’s statements about the disposition of his platoon and its vehicles on the day in question conflicted with the evidence of other witnesses.
A direct challenge to the main body of Jesionek’s story hinged around the gateway through which he claimed he had seen the seven Canadians march to their deaths.
A 16-year-old French lad, Daniel Le Chevre, who had been living in the abbey, claimed that the gateway was blocked by an air-raid shelter. Where Jesionek claimed to have seen seven bodies lying in a “pool of blood,” and where the bodies were to be found in their secret graves about 10 months later, Le Chevre and two or three of his pals had seen nothing to excite their interest.
Jesionek had mentioned a set of steps at the side of the gateway, but M. Jean-Marie Vico, another former abbey resident, said he had built those steps himself in July 1944—a full month after Jesionek claimed to have seen them.
What reasons, if any, could Jesionek have had for lying or elaborating? To its credit the prosecution, during the numerous pretrial interrogations, had probed hard for possible ulterior motives. It had sought out the U. H. Army sergeant who took Jesionek's first statement at Chartres, and questioned the sergeant closely on the details of the young Pole’s first examination.
Jesionek himself claimed that soon after he had begun making his first statement about Kurt Meyer an American soldier had entered the room in which he was being questioned and said: “Ah, you are an SS man. We are going to hang you.” Then, Jesionek said, he finished his statement.
At first the American sergeant denied flatly that any such threat had been made. Then he admitted it was “possible,” finally that it was “probable."
Jesionek said he had been an unwilling conscript and that he had deserted in France. When he was drafted into the SS his father was in a German concentration camp. He concealed this information during his first few interrogations and explained the deception in these words: “I remained silent so as not to arouse any suspicion that because of my father I sought revenge on Meyer.”
An Adjutant Was Sacked
Meyer’s defense against the charge of responsibility for the second mass murder committed at his headquarters was substantially the same as his defense against the “Jesionek” charges.
There was no eye-witness testimony in connection with this second slaughter—although the defense did not challenge the well-documented evidence that, on or about June 10, 1944, 11 “volunteers” had been selected from a large group of prisoners gathered in the abbey courtyard and clubbed to death in a manner and for reasons unknown.
With the onus now on Meyer to prove himself innocent of responsibility the defense built its case around these submissions:
(1) The crimes all occurred during a period of furious and continuous battle and Meyer was too preoccupied with events on the battlefield to make himself personally responsible for what happened elsewhere.
(2) According to Meyer's testimony he first learned of the killings on June 11 when his adjutant showed him the bodies of all 18 Canadians lying in a group in the abbey garden. (This could have fitted in with young Le Chevre’s story, but could not have fitted in with Jesionek’s.) When he showed his commander the bodies Meyer’s adjutant professed to be ignorant of how they got there. Meyer fired him.
(3) The 18 Canadians were killed, not by troops who had been trained and continuously led by Meyer, but by members of the German Field Police, who became responsible for the handling of prisoners on their arrival at regimental headquarters.
Before the verdict was brought down a number of episodes occurred which, whether or not they influenced the court, plainly made its legal adviser uneasy. Faced with the delicate task of interpreting a set of legal directions almost entirely devoid of legal precision the Judge Advocate, Lt.-Col. W. E. Bredin, made frequent and unhappy asides about the prevalence of hearsays, but reminded the court that it was entitled to listen to anything it considered relevant.
Midway through the trial the prosecution announced it had uncovered some fresh evidence concerning the shooting of a Canadian officer at Meyer’s headquarters. The defense protested that this shooting was not mentioned in the charge sheet.
The court ruled that Meyer couldn’t be found guilty of it, or for responsibility for it, but if the responsibility could be traced to him unofficially it might indicate an increased likelihood that he had been responsible for the other crimes.
The prosecution was allowed to introduce its evidence and thus, in this little trial within a trial, Meyer found himself being tried for a crime of which he hadn’t been accused, for which he could not be officially convicted, against which he had had no opportunity to prepare a defense—but which, through its possible inferences, could conceivably have cost him his life.
In Law All Must Be Equal
A similar ruling was made later when the prosecution was permitted to make extended references to a number of alleged murders of prisoners which a Canadian court of enquiry had attributed to the German regiment on Meyer’s left flank. No proof of any kind was introduced regarding these other shootings and the prosecution admitted it wasn’t trying to link them with Meyer.
In explaining its reasons for allowing them to be discussed the court came close to pure doubletalk. “Incidentally, for the record,” the president ruled, “the accused cannot be held answerable for these incidents which occurred in other regiments, nor can that information which has just been divulged be used to influence the court in this trial here. The purpose of introducing these alleged reports is to show tendency. That is really the prosecution’s case.”
During his cross-examination Meyer dropped an aside to the effect that, early in the Normandy campaign, he had come across the bodies of half a dozen German soldiers lying on a roadside in circumstances which convinced him they had been taken prisoner and then shot by the troops opposing them.
The Canadian brigade commander operating in that particular area at that particular time had been the president of the court, Major-General (then Brigadier) Foster.
The court listened attentively to Meyer’s testimony on the alleged shooting of German prisoners by Canadian troops under Foster’s command but when the prosecution announced it wanted to call witnesses in rebuttal, the court decided this wasn’t necessary.
“I don’t think there is any question in the minds of the court as to that particular incident,” General Foster said.
Officially the Kurt Meyer case is closed. Meyer is serving his life sentence in Dorchester penitentiary, in Nova Scotia. There is no procedure under which the sentence of death can be reimposed. The only procedure by which the sentence of life imprisonment can be further remitted is through a petition for clemency to the throne.
Why not leave the case where it stands—filed and forgotten? Because while men live by laws they cannot live freely and without fear unless all men are equal before those laws.
The laws under which Kurt Meyer was tried rest not, as all safe laws must rest, on the solid bedrock of firm rules and clearly stated principles, but on the unattainable hope of human omniscience.
If the Kurt Meyer trial was unfair its greatest unfairness wasn’t to Meyer himself. It was the final, overriding unfairness to a set of precepts which, if we deny in the face of our enemies, we may yet deny to ourselves.