The myth of “we had to obey orders, or we’d be shot ourselves”

Somebody at work asked me the other day if SS and Wehrmacht soldiers commanded to participate in the early “Holocaust by bullets”, mass executions of Soviet POWs, hostage mass killings, or other National Socialist massacres could refuse to participate without being shot themselves.

Indeed, in postwar trials in Germany, direct participants often invoked the defense of “Befehlsnotstand” (literally: command emergency; idiomatically: obeisance under duress; obeying an order on pains of death or severe punishment). In the 1950s and 1960s, many courts accepted that defense, especially for soldiers, NCOs, and junior officers.

However, in later jurisprudence, the German Bundesgerichtshof (Federal Supreme Criminal Court) and Bundesverfassungsgericht (Federal Constitutional Court) established that this defense only applies when the defendant would have faced “clear and present danger to his life or that of his family”, and not for lesser negative repercussions such as demotion, transfer to the front, or transfer to a penal unit.

While some 23,000 Wehrmacht and Waffen SS personnel were executed for insubordination, I am not aware of a single example where this happened solely for refusal to participate in mass shootings. Christopher Browning, in his ground-breaking monograph Ordinary Men: Reserve Police Battalion 101 and the Final Solution in Poland on Reserve Police Battalion 101 and its role in the ‘Holocaust by bullets,’ found that 10% of the men (including one platoon commander) refused outright, and another 20% found ways to avoid participation — and that not even the platoon commander was ever punished.

Yesterday, I stumbled onto a more specific study by Dr. David H. Kitterman of Northern Arizona University, expanding on an earlier German study.

(1) Kitterman, D. H. Those Who Said “No!”: Germans Who Refused to Execute Civilians during World War II. Ger. Stud. Rev. 1988, 11 (2), 241. https://doi.org/10.2307/1429971

The author, investigating the files of the “Z-Commission” in Ludwigsburg[*] analyzed 85 cases of refusal to carry out such orders. I have already blogged here about two examples, both posthumously awarded the title “Righteous Among The Nations”: Lt. Albert Battel and Maj. Karl Plagge — but they were not the only ones.

So what consequences did these men suffer for their refusal?

The one case sent to a concentration camp was an Ordnungspolizei (uniformed “Green police”) 1st Lieutenant [Oberleutnant] Nikolaus Ernst “Klaus” Hornig, a trained lawyer by background, who refused an order to have his platoon shoot 780 Soviet POWs — saying he could not do such a thing “as a jurist, Catholic, and army officer”. He also said that such an action “smacked of [NKVD] methods”, and invoked Article 47 of the Militärstrafgesetzbuch (Military Penal Code), which I have discussed here in my post on Albert Battel.

Art. 47: I. If through the execution of a military order a penal offense is committed, then only the commanding superior officer is responsible. [So far, no surprise.] However, the obeying subordinate is liable to punishment as a participant if:
1. He has exceeded [the limits of] the order given 
2. It was known to him that the purpose of the superior officer’s order was a military or civil crime or offense.
 [Original wording: “wenn ihm bekannt gewesen, daß der Befehl des Vorgesetzten eine Handlung betraf, welche ein bürgerliches oder militärisches Verbrechen oder Vergehen bezweckte.”]

Significantly, he was not charged with insubordination (as Art. 47 sub 2 would have been a defense against that charge), but with the purposely vaguely defined offense of Wehrkraftzersetzung (undermining the fighting spirit through speech and example — specifically, lecturing his troops about Article 47 and the justified refusal of criminal orders). In November 1942 he was sentenced to three to four years in prison, and sent to Buchenwald. SS-Reichsführer Himmler [y”sh] was displeased with the mild sentence and ordered a retrial (he could do so as Hornig was now in his “empire”): in March 1945, Hornig’s sentence was increased to 6-7 years. That sentence Himmler refused to sign off on, but the camp was liberated just a month later and 1Lt. Hornig survived his ordeal.

Three other Verweigerer (refusers) were sent to combat units as punishment: one of them fell in battle, as might have happened otherwise anyhow.

Among the seven “demotions or lack of promotion” was one woman, a nurse who refused to participate in mass “euthanasia”. Her pay was reduced but she was not otherwise punished.

And yes, there is the tragic case of Feldwebel [Sgt.-Major] Anton Schmid, who was executed for rescuing Jews — but his actions went way beyond refusal of a criminal order: not only did he help 300 Jews escape, but he actually supplied arms to the Jewish underground in the Wilna ghetto. Heroic as his actions were (he, too, was posthumously given the Righteous Among The Nations distinction by Yad Vashem, citation here: https://www.yadvashem.org/righteous/stories/schmid.html ), this is an ‘exception’ that actually proves the rule. [Here is the testimony of Abba Kovner, a leader of the Jewish resistance in the Wilna ghetto, about Schmid at the Eichmann Trial: Kovner first learned about Eichmann y”sh and his role from Schmid.]

A spurious example, proffered by the defense at a postwar trial, was of an SS Haupsturmführer (Captain) who was supposedly shot for refusing to carry out a mass killing of Jews. In fact, the Ludwigsburg commission found that the SS-Captain in question was actually executed more than two years later on an unrelated charge (cowardice in the face of the enemy, for having withdrawn against orders as the Red Army was approaching the “fortress city” of Memel/Klaipeida in Lithuania).

Another “related but not the same thing” case was an SS Unterscharführer (Corporal) named Viktor Pestek , a wounded Waffen SS man sent on a ‘convalescence assignment’ as a camp guard at Auschwitz. There, he fell in love with a Jewish inmate and tried to help her and others escape (and actually did help a Jewish Czech army officer named Siegfried Lederer escape by giving him an SS uniform and a false passbook). Pestek was caught while trying to exfiltrate three additional prisoners, sentenced to death for desertion and treason, and executed.

So it seems fairly clear that simple refusal to participate in a mass killing was actually possible for a Wehrmacht or even SS soldier. In part, there was the complication that these acts were technically illegal even by the debased legal standards of the Third Reich, and hence the desire for secrecy or at least discretion on the part of the SS apparatus; but, sadly, there was also the knowledge that for every soldier or NCO who refused, one or two other would be found who would commit these crimes willingly or even enthusiastically.

It appears, however, that locally recruited auxiliaries did not have that option. Jeffrey Burds, in his monograph on the Rovno mass killings:

(1) Burds, J. Holocaust in Rovno; Palgrave Macmillan US: New York, 2013. https://doi.org/10.1057/9781137388407

gives several examples of German shooters who were excused when they couldn’t go through with it (any longer), but on pp. 58-59 adds:

While German shooters may have had a choice on whether or not to take part in the massacre, such latitude was evidently not available to the far more numerous members of the Ukrainian militia.86
A Jewish survivor from Rovno, Batia Zaluska, testified that “several of the Ukrainian executioners dropped their weapons and started running toward the pits. Their commander shouted after them: ‘What’s the matter with you, Jew-lovers, an order is an order?’ He thereupon gave the order to shoot them, and they were mowed down into the pit,” side by side with their Jewish victims.87

[*] Full name: “Zentrale Stelle der Landesjustizverwaltungen zur Aufklärung nationalsozialistischer Verbrechen” , Central Office of the State Justice Administrations for the Investigation of National Socialist Crimes.

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