The Art of Occupation. Thomas J. Kehoe
involving people that refused to accept new authority. It also requires clarifying the major perpetrators. As Dahrendorf suggests, all manner of people committed crimes during the time surrounding conquest. But for clarity, they roughly fell into three categories that remained the dominant framework throughout the occupation: German civilians, foreigners (often labeled “DPs,” even though that grouping was narrower), and Allied soldiers. Even in the haze of war, the American military approached the policing and prosecuting of these groups differently. The first two fell under the responsibility of MG, while soldiers were the concern of regular military command.38
It is difficult to develop a satisfactory account of crime that occurs during combat using historical, criminological, or interdisciplinary methods. Firstly, it is not clear what constitutes a “crime” in a live combat environment. Most violence by soldiers against soldiers falls under combat immunity and is legally classified as noncriminal.39 But the hard line this implies between combat violence and criminal behavior blurs when we consider the killing of enemy soldiers in the process of surrender, violence against nonuniformed defenders (sometimes now referred to as “enemy combatants”), or violence against civilians. The well-known issues of collateral damage and accidental victimization make the problem murkier still.40
It is only marginally easier to establish a property offense during combat. During World War II, nearly every military rationalized the theft of food and other staples by soldiers as their acquiring the basic necessities for survival. But on the rare occasions that MPs did investigate theft and looting, finding a wronged party was nearly impossible. Arrested soldiers rarely remembered (or were willing to remember) where they had acquired stolen goods, and oftentimes the likely places had been destroyed in the fighting.41
The extent to which categorization problems affected prosecutions is difficult to determine. It is clear, however, that virtually no American or British soldier was prosecuted—let alone punished—for a violent crime against Germans, or for looting and theft, committed during combat. There were very few prosecutions of soldiers for any crimes against civilians during the advance across Germany in 1944–45.42 Evidence from criminal investigations and observer accounts suggest that the number of crimes soldiers committed far exceeded the rate at which they were arrested or prosecuted.43 The US military was aware of a rise in soldier-perpetrated murder between August 1944 and the end of the war, with a “sudden large increase in April and May [1945].” But violent offenses such as assault and murder were especially difficult for military investigators to identify and therefore prosecute, even if they were wont to do so.44
Maintaining the morale and integrity of tactical units also outweighed the military’s concerns about potential crimes by its soldiers. Sexual offenses were one partial exception: the context of combat does not mitigate or obscure the obvious criminality of sex crimes, and the military was aware that “rape” was “a large problem in the European Theater of Operations.” This included “Continental France” and, in “March and April [1945],” the “large scale invasion of Germany.”45 But very little was done about it. JAG rarely prosecuted American soldiers for sex crimes. Only between 600 and 1,500 soldiers were charged during the first half of 1945, most for incidents occurring outside combat.46 This may suggest the military’s inattention to crime occurring during combat. In one of the first examinations of American-perpetrated rape in World War II, Susan Brownmiller famously describes the battlefield as space for predatory male sexual violence.47 While it is now evident that American soldiers committed far more sex crimes than suggested by the small number of JAG prosecutions, it is not clear how many of these crimes occurred during combat. They appear to be a problem that emerged in the victorious aftermath.48
It is equally difficult to categorize, or identify, crimes committed by civilians. It is not clear, for instance, whether a civilian who during combat steals food or some other resource vital for survival should be considered to have committed a crime. Such questions tap old ethical quandaries: what constitutes a “crime” in desperate circumstances, and can context justify needs-driven acts? On the whole, US officers and MGOs were not affected by such philosophical problems and instead aggressively moved to restore social order, arresting and detaining any civilian suspected of thievery, looting, or property damage, no matter the motivation. MPs and the first MG detachments handled this initial stabilization. In the cities, MG detachments closely shadowed frontline forces and were often little more than a few blocks behind them. Quite frequently they saw what they believed to be looting.49 Those arrested were referred for trial in a military court, which at first consisted of little more than an officer dispensing summary judgments with the loosest reference to either the MG Legal Code or German law. Few records remain, and those that do suggest that hearings rarely lasted more than a few minutes and conviction was near certain.
A small number of defendants arrested by American forces were referred to more formal military courts attached to the First, Third, and Ninth Armies.50 These records provide scant details, often making it impossible to determine where a crime occurred. But the distribution of charges laid during these trials foreshadowed the later standard: disproportionately high rates of offenses against the strict MG controls such as curfew and travel restrictions, followed by a far smaller number of property crimes, and comparatively few violent offenses.51
The picture was very different in combat areas or in places where Allied authority was weak. During the Battle of the Bulge, numerous civilians were arrested in the countryside around Aachen for looting, many in groups. The punishments MG courts imposed were severe, ranging from two to ten years’ imprisonment. The apparent intention was to disperse nascent gangs. Those who were not German frequently had their sentences suspended on the condition that they “[left] Germany within 24 hours and [did] not return during the occupation.”52 Urban areas were even more chaotic. One set of records shows arrests made around Oberkassel—a neighborhood of Düsseldorf—during March and April 1945. Düsseldorf abutted the heavily defended Ruhr industrial region, which the Allies bypassed and isolated during the initial advance. This Ruhr Pocket was then effectively besieged until late April. Spurred by the threat of violent Nazi retaliation against defeatists, the motley remnants of Wehrmacht units and Volkssturm militia kept fighting, making the area one of the truest examples of near total lawlessness.53
American soldiers frequently arrested German looters who, trying to survive, strayed out of the pocket. They were then tried in the summary courts in Oberkassel. There is little evidence of even rudimentary gang formation in the records of these arrests, suggesting that even the most tenacious social bonds may have disappeared. Unlike in occupied areas, however, where conviction rates were frequently over 90 percent, in Oberkassel just under 60 percent of those charged were convicted. And their punishments were mild, ranging between thirty days’ and six months’ imprisonment. These differences suggest that MGOs recognized both the terrible conditions those arrested were escaping and the likelihood that many were swept up in the indiscriminate efforts at social control by frontline units.54
The Allies often struggled to restore order immediately after combat. Most looting and rioting occurred as people emerged from hiding after combat ceased but before Allied power was firmly established. Crime and disorder soared, for instance, after the British captured Bremen on 27 April. The city, which was to be turned over to the Americans as their deepwater port, continued to experience disorder well after the handover. One of the first American MGOs later explained that “in the early days of occupation” there was “considerable … looting.”55 The records of the Bremen MG courts support his impressions, showing that it took at least six weeks for the Americans to restore some semblance of order.56 MGOs and MPs used whatever means necessary to quell this criminality, including mass arrests and aggressive prosecution. In Bremen, MG began “a practice of increasing sentences … as a deterrent,” which they believed “practically stopped” looting.57
The rapidity of the Allied advance created other, less easily defined spaces in which law and order essentially did not exist. Many were rural. The Americans bypassed large areas of southern Bavaria and Austria, for example, and Nazi control just melted away during April 1945. It was sometimes weeks before the first occupiers arrived. Some of these essentially unoccupied areas became