The Art of Occupation. Thomas J. Kehoe
nearly everywhere, creating lasting impressions. One of the first officers in Darmstadt recalled that the city “was a sorry mess. Germans and DPs had looted all food stores and railway cars.”72 The MG Legal Code predicted this postconflict lawlessness and specified looting as a separate crime from theft, punishable by any permitted fine, prison term, and even death.73 MGOs rarely imposed such harsh sentences. Only 5 cases were found in this study (from 387 total) and none by an American court. Two death sentences were handed down by the British General Court in Oldenburg and three by the British General Court in Hanover. Additional conditions may have been relevant to the sentences in these cases; notably, the crimes occurred well after the end of the war—in September 1945 for Oldenburg and April 1946 for Hanover—and were committed by groups, suggesting gang activity. It was less important that these were non-American MG courts. Although cultural differences in the approach to criminal justice existed between the Allies, these appear to have had little meaningful effect on conviction rates or punishments.74
Similarities in the American and British approaches to criminal justice, as well as their shared MG court system and legal code, permit useful comparisons across occupied western Germany. During the first six weeks of the occupation in Cologne, British MGOs typically punished looting more harshly than theft or burglary, with an average of seventy-five days’ imprisonment compared to twenty-five days (or commensurate fine) for the latter offenses.75 These punishments were at the lower end, but not markedly so. In American-controlled Bremen, sentences for looting ranged from thirty days to one year, and in British Hanover, the punishment was typically one hundred eighty days.76 MGOs’ responses were little different in the countryside; however, comparably very few arrests were for looting. Detachments instead prosecuted theft, burglary, and trespass far more often, suggesting more orderly social conditions and less acute economic strain. Punishments were also lenient, ranging from five to sixty days’ imprisonment. Rather than pursuing aggressive repression of occupied Germans, American and British MGOs across the west followed SHAEF priorities, containing disorder and avoiding unduly antagonizing locals.77
As it was not always clear who was committing crimes, perpetrator identification was a major obstacle to restoring law and order. The first MG commanders received fragmentary reports of looting and rioting by DPs, Germans, and American soldiers. Different laws applied to each of these groups, creating challenges for policing. MGOs could use dragooned German police against other Germans, but Allied soldiers and DPs had extraterritoriality as United Nations personnel, exempting them from German law and criminal justice. MGOs could use MPs, who were effective against DPs, but camaraderie often made them less willing to restrain other American soldiers, resulting in few arrests. In any case, the initial wave of American crime tended to dissipate quickly when tactical forces moved on.78 MGOs were less concerned about maintaining DPs’ extraterritoriality and, despite the restrictions, often deployed German police against them. When exposed, this maintenance of Nazi-era power structures in pursuit of short-term order provoked outrage among former Nazi victims and Americans, though it was more common than the military acknowledged and reflected the spirit of MG strategy, if not the stated policy.79
MG more frequently employed German police to impose restrictions on freedom of movement, a less impolitic decision that also helped restore order. MGOs ordered streets cleared and announced strict curfews and travel restrictions. They carried out mass arrests following the lockdown of entire areas, detaining real and potential troublemakers. Nearly half of all arrests in Cologne during the first weeks of occupation were for minor violations.80 In Nuremberg, 320 people were tried in just fifteen separate cases during the first two weeks of occupation, 312 for violating curfew.81 Of these, 249 were convicted, receiving an average of five days’ imprisonment or equivalent fine, though most were tried toward the end of the second week and received no consideration for their prior detention.82 MG in the American Zone would later officially authorize protective custody, but in the earliest stages of the occupation, MGOs regularly employed this sort of informal detention without charge in pursuit of social control.83
MGOs’ use of mass arrests and protective detention extended from their tendency to view the MG Legal Code as a tool for enforcing order subject to changing local demands. The law could become a cudgel against offenders appearing to resist Allied authority. The first case in Nuremberg involved a fifty-three-year-old man charged with illegal possession of a firearm and “concealment of records.”84 He was acquitted on the first count but convicted on the second and sentenced to six months’ imprisonment. The second case was against a young man charged with “interfering with [Allied] communications,” an offense that warranted an additional charge under Section 43 for “acting to the prejudice of the good order.” He was fined 400 RM, which resulted in four hundred days’ imprisonment when he could not pay, rather than the standard of forty days (10 RM per day) recommended by JAG in February 1945 and already widely used at the time.85
Hiding one’s prior Nazi affiliations was the most common form of resistance and in the early weeks of the occupation often resulted in harsh sentences. Two men in Oldenburg received five years’ imprisonment. But MGOs could easily construe virtually any offense as resistance, and harsh punishments were also meted out for otherwise nonserious offenses. The first trial held in Augsburg was for a young man charged with possession of stolen Allied property, tried in a hastily convened intermediate court. He was convicted and sentenced to five years in prison. The next five trials in the intermediate court occurred over a month later, four for the ostensibly more serious charge of firearm possession and one for hiding a Nazi history. The punishments for weapons were between five and thirty-seven years in prison. But in an indication of how flexible sentencing was, hiding a Nazi past only resulted in a 1,000 RM fine, or one hundred days.86
SHAEF was aware that detachments deviated widely in their application of the MG Legal Code. At the beginning of March 1945, JAG released a list of recommended sentences for nearly all offenses in the MG and the German Criminal Codes. MGOs paid little, if any, attention to it, or to the principle of equal justice that underlay the recommendations.87 The same notional offense could receive a sentence of anything between a small fine and life imprisonment or death. Moreover, practical concerns often mitigated punishments. Fines were handed down when jails were unavailable, which then changed after a few months when they were reconstructed.88
Variations in sentencing stemmed in part from MGOs’ arbitrary use of the law. A problem of charge clarity pervades the military court records. Officers applied widely varying charges to the same criminal behavior, obscuring early criminal conditions. MGOs in many cases failed to record any reason for applying one of the catchall laws (Sections 21 and 43). Wilhelm Dietz (aged forty-four) was charged under Section 43 in the Frankfurt Summary Court on 10 April 1945 and received a punishment of six months in prison, but the record offers no further explanation of his actual crime or reason for the lengthy sentence.89 On the same day, three other people were prosecuted and convicted for curfew violation and received 100 RM fines, so Dietz’s crime was likely comparatively serious, but as with many files that remain, we have little way of knowing.90 MGOs’ use of the law to assert Allied power further exacerbates the problem of charge clarity. It is possible that Dietz ran afoul of the regime in some noncriminal way that led to harsh punishment. For many MGOs, enforcing order meant ensuring that Germans were duly deferential. Even the mildest infractions could attract harsh punishments if the perpetrator was disrespectful, often recorded as “Disrespect of Allied Forces” next to a charge under Section 21 or 43. The British in Cologne most consistently detailed the underlying offense, such as shouting insults, making indiscreet drunken comments, or refusing to obey orders. Punishments again varied wildly. “Disobey police” often meant 180 days in prison, while “drunk” could mean anything from 2 to 30 days. “Attempt to mislead Allied forces” resulted in eighteen months.91 In Darmstadt and Augsburg, punishments for similar offenses against Allied authority ranged from five days to one year of imprisonment.92
MGOs’ concern for fairness ran a distant to second to demonstrating power. In one of the first cases in Nuremberg, twenty-one people were charged with violating curfew despite claiming that German civilian time was one hour behind American military time. All were found guilty and received 100 RM fines or ten days’