Foreign Relations of the United States, 1951, European Security and the German Question, Volume III, Part 2

762A. 33/6–2151: Telegram

The Acting United States High Commissioner for Germany (Hays) to the Office of the United States High Commissioner for Germany, at Frankfurt¹

confidential

Bonn, June 21, 1951—4 p. m.

1241. Bundestag debate June 20 of Kemritz affair (see Bonn’s 978 Dept rptd info Frankfort 1239, June 20²) was one of strongest most resentful demonstrations of plenum ever made against an Allied power. Speakers of all parties unanimously condemned TICOG decision to prevent Kemritz trial as mockery of justice, unjust, unbearable, unacceptable, etc. All speeches reflected violent reaction and were in several instances used to attack HICOM policies.

Deputy Arndt (SPD), after introducing interpellation outlined history of Kemritz affair and then launched bitter, aggressive attack against legal and moral reasons HICOG gave for interference June legal proceedings against Kemritz, including form and text of HICOG statement announcing discontinuation of case. He termed statement especially serious one which cld easily make human rights case.

Arndt then categorically disputed legality of three different HICOG actions, i.e., ordering discontinuance of (a) civil suits against Kemritz, (b) his trial by court of honor of Bar Assn, and (c) trial on criminal charges, (a) and (b) Arndt maintained HICOG action illegal because interests of occupation powers were not affected. Such interference in private Ger affairs no longer justifiable even on basis of already outdated occupation statute. He compared Arbeitsfront case under Ley with Kemritz affair, concluding that it was not in interest occupation powers to use such precedents. In this connection Arndt referred to possible tax evasions of Kemritz, sarcastically hoped Allies wld not prevent collection. Re (c) Arndt asserted that provisions of HICOM Law 14 were not applicable since its protective clauses shld only apply to persons who cooperated with Allies within limits of human rights and dignity.

Re HICOG statement of June 13 [14], it was responsible for new and serious situation. Arndt stated such statement wld not have been made if McCloy had been in his office to handle issue himself. Arndt explained he was convinced that neither McCloy nor Amer people and its reps cld be associated with evil spirit of announcement. This spirit, however, was evident in denazification; it was reflected in attempts to make recognition of fon debts a condition for recognition of separate West Ger state; it was to be found emanating from outdated Morgenthau plan which with false decartelization policy had compromised Eur idea of Schuman plan. This spirit is un-American and its results are pro-Soviet.

Arndt then bitterly castigated Kemritz for betraying Gers to death at hands of totalitarian power. This was murder. Many death sentences were carried out on Ger territory (referring to Sov Zone). “How are we supposed to protest against such Sov Zone terror justice, if one wants to describe such arrests as legal?” Kemritz victims perished without even pretense of verdict. “If this were legal it wld mean that Nuernberg trials had not taken place.”

Finally Arndt argued that Allied use and support of Kemritz cannot be justified on legal or security grounds. Summary of argument: “It is impossible and fatal to link question of morality with profit one acquires from the act. I cannot recognize that assistance for inhumanity can be balanced by services rendered.”

Fed Min Justice Dehler, main speaker for govt, painted his connection with Kemritz affair as that of defender of justice who had taken all necessary steps in that direction, while hoping that Americans wld assume correct attitude. He claimed that he had been long mystified by Amer attitude in Kemritz affair and indicated that dark reasons behind it were now clear but completely unjustified. He agreed completely with interpellations advanced in Bundestag concerning Kemritz case. He traced history of Ger-Amer entanglements over case, carefully stressing that he had proceeded industriously and properly. As soon as Ger trial of Kemritz was in offing, Amer counter-action began but without reason. He had believed until recently that Amer court in Berlin intended to try Kemritz but now it appears no such trial will occur. Ger prosecutor in Berlin, however, will proceed with case in Ger court. “We have not submitted our documents on Kemritz” to Amers in Berlin. He agreed fully with Arndt’s arguments on “impossibility and legal intolerability of action of Amer authorities.” He maintained that Amers have not even tried to justify themselves re any basis for this case touching interest of occupation power. Nor is there any real legal basis for Kemritz action in turning over automatic arrestees to barbaric treatment of Russians. Any extradition shld have taken place through formal requests from one occupation power to another, not thru criminal activities of Kemritz. HICOG statement that Kemritz had been of assistance in these arrests is “intolerable and bare of justification”. It is grotesque to state that Kemritz has provided valuable assistance. “Fed govt has no understanding for Amer attitude in this case”. Kemritz activities are worst crimes in Ger penal code and constitute serious deprivation of freedom and grave offense against humanity “which is always proclaimed by Amer authorities”. “Victorious powers shld be pleased over our reaction to injustice.” “Today I had discussion with official of Amer High Comm and this official told me ‘Kemritz is no longer under Ger jurisdiction. He has already left Ger territory or is at least going to do so’”. Fed Govt desire for settlement of Kemritz crimes will not be deterred by this action. Fed Govt will formally protest against statement of Office of Legal Affairs HICOG and will ask US High Commissioner to cancel all actions preventing Kemritz trial. Fed Govt also expects Ger trial pending against Kemritz in Berlin to continue. Fed Govt will decide whether to request extradition of Kemritz.

Merktaz, DP Deputy, echoed Arndt and Dehler, and expressed opinion that interference with Ger justice illegal in view revised occupation statute.³ He and his friends “will resign for [from] political activity if atmosphere is not cleared”. DP expects guarantees from occupation powers re future interpretations of general political provisions of occupation statute. HICOM Law 13 shld be abolished.⁴ DP regards any “beetle of occupation powers” with contempt and refuses to aid any collaborator. If this case is finally resolved, relations between Ger and occupation powers can be cleared.⁵

Comment: Questions arise whether resentment expressed is sincere or mere blowing off of excess steam. One of disturbing aspects is that despite fact Ger leaders were confidentially informed of real nature of this case and its basis, speakers, especially Dehler, decided to embarrass HICOG as much as possible. In private conversations all leaders including Dehler had expressed understanding of US action if not full agreement.

Suggest best public attitude by all Amer quarters on this case be dignified silence and if that impossible firmly worded oral statement to effect actions with which Kemritz charged fall clearly under jurisdiction Amer courts and not under Ger courts. Re any statement that NKVD was legal institution or services rendered by Kemritz valuable, shld be kept in mind that both theses, regardless of legal tenability, are from political view thoroughly indigestible in Germany. Since we cannot convince Ger public we are right best we can do is be firm and haughty with implication that when all can be told, they’ll regret present outburst. This will at least command Ger respect.

Hays

1. Repeated to Washington, Berlin, London, Paris, and Moscow.

2. Not printed; it reported that the Bundestag debate on the Kemritz case had been “somewhat heated and bitter”, and that a full report followed.

   On June 14 HICOG had announced that Federal prosecution of Dr. Hans Kemritz, a Berlin lawyer who was accused of trapping West Germans for the Soviet Zone secret police, was being discontinued under High Commission Law No. 14. For the text of Allied High Commission Law No. 14. “Offenses Against the Interests of the Occupation”, dated November 25, 1949, see Laws, Regulations. Directives and Decisions, vol. i, pp. 46–50. (762A.33/6–2051)

3. For documentation on the revision of the Occupation Statute for Germany, see pp. 1410 ff.
4. For the text of Allied High Commission Law No. 13, “Judicial Powers in the Reserved Fields”, dated January 1, 1950, see Laws, Regulations, Directives and Decisions, vol. i, pp. 39–42.
5. In a similar situation in the Berlin House of Representatives on June 22, the Kemritz case was discussed “soberly” and a joint motion, calling on the Senate to take the necessary steps so that the criminal proceedings against Kemritz could be tried, was adopted unanimously. At a reception following the session various Berlin officials “showed their deep concern over matter and their apparently real fear re US loss of prestige in Berlin and deterioration US–Ger relations here.” Page reported these events in telegram 1536 from Berlin, June 22 (762A.33/6–2251).