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The Hidden Histories of War Crimes Trials$

Kevin Heller and Gerry Simpson

Print publication date: 2013

Print ISBN-13: 9780199671144

Published to Oxford Scholarship Online: January 2014

DOI: 10.1093/acprof:oso/9780199671144.001.0001

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Justice for No-Land’s Men? The United States Military Trials against Spanish Kapos in Mauthausen and Universal Jurisdiction

Justice for No-Land’s Men? The United States Military Trials against Spanish Kapos in Mauthausen and Universal Jurisdiction

Chapter:
(p.103) 5 Justice for No-Land’s Men? The United States Military Trials against Spanish Kapos in Mauthausen and Universal Jurisdiction
Source:
The Hidden Histories of War Crimes Trials
Author(s):

Rosa Ana Alija-Fernández

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199671144.003.0005

Abstract and Keywords

This chapter discusses the 1947 trials of five Spaniards — Joaquín Espinosa, Laureano Nava, Indalecio González, Moisés Fernández, and Domingo Félez — before United States military courts in occupied Germany. The proceedings marked the first time universal jurisdiction was invoked to try to nationals of neutral states and stateless people for war crimes. Their story also illustrates the effects of the brutalizing industrialized evil implemented by Nazism and the negative effects of industrialized justice carried out by the Allies at the end of World War II.

Keywords:   universal jurisdiction, war crimes trials, military courts, Joaquín Espinosa, Laureano Nava, Indalecio González, Moisés Fernández, Domingo Félez, Spain, World War II

(I) Introduction

In 1947, five Spaniards—Joaquín Espinosa, Laureano Nava, Indalecio González, Moisés Fernández and Domingo Félez1—were tried before United States military courts in occupied Germany. Their treatment and, in particular, the application of universal jurisdiction to nationals of neutral states and stateless people, represent an important ‘untold story’ of the post-war trials and provides an unusual precursor to the development of universal jurisdiction in general. Their story illustrates also the effects of the brutalizing industrialized evil implemented by Nazism and the negative effects of industrialized justice carried out by the Allies at the end of World War II. Life for inmates in concentration camps—where being a hero or a villain depended to a great extent on a volatile fate—was too complex for men to understand and so simplification and silence have become useful tools to absorb it. As fighting against impunity after World War II was a laudable task, mistakes in the administration of justice seemed more acceptable. Insignificant as these cases might have been in the wider context of post-war justice, to shed light on them now can help both to track the evolution of universal jurisdiction and remind international criminal lawyers that fighting against impunity after mass atrocities (p.104) requires quantity, but also quality considerations: due process must be upheld as the only way to prevent injustice and victimization.

Former soldiers in the Spanish Republican Army fighting against Franco’s fascism, Espinosa, Nava, González, Fernández and Félez fled to France after Franco’s victory, where they joined the fight against Nazism.2 Indeed, many veterans from the Republican Army joined the French Army as members of the Foreign Legion (Légion étrangère) and the so-called Marching Battalions of Foreign Volunteers (Bataillons de marche des volontaires étrangers), created between 1939 and 1940,3 as well as members of the Companies of Foreign Workers (Compagnies de travailleurs étrangers).4 Those in the Legion and the Battalions (some 15,000 people in total) were combatants, while some 55,000 people in the Companies worked to fortify the French defences along the German and Italian borders.5 In the period from 10 May to 20 June 1940, during the invasion of France, around 20,000 Spaniards were captured by German troops and taken to concentration camps. Mauthausen was the main destination for Spanish prisoners, to the extent that by 1941 they most probably represented sixty per cent of the camp’s population.6 More than seven thousand veterans of the Spanish civil war were deported there during World War II; around 5,000 of them died due to mistreatment and starvation. Three thousand more were deported to other camps, like Dachau, Buchenwald, Bergen-Belsen and even Auschwitz and Treblinka.

Espinosa, Nava, González, Fernández and Félez were working for the French Army when they were captured by the Germans and taken first to prisoner-of-war camps (Stalags)7 and later to Mauthausen, from where they were transferred to its satellite sub-camps (mainly Gusen—both 1 and 2—,Steyr and Wiener-Neudstadt).8 After the liberation of the camp by US troops on 5 May 1945, the five Spaniards were accused of having held posts as Kapos in Mauthausen and, as a result, apprehended and taken to Dachau, where they were tried by military courts on the basis of their participation in a joint criminal enterprise. Kapos were inmates (p.105) appointed by the SS to command work details (Kommandos). They were usually selected because of their physical condition, but they were also sometimes chosen because of their expertise concerning the tasks the team was meant to carry out. Frequently mistreated by the SS, many chose sadism against fellow inmates as a strategy to survive, while others used their position to protect other inmates from excessive abuse.9 Victims and tormentors at once, they were highly controversial figures inside the camps whose very existence served to destroy social ties among prisoners.10

Several objections can be made to the way proceedings were carried out, particularly in relation to process standards. Although military courts had general jurisdiction over crimes committed in the zone of occupation under the control of the United States, the fact that Spain had been a neutral state during the war generated some hesitation concerning their authority to try the five men. The jurisdictional question was finally answered in the affirmative, based on the principle of universal jurisdiction, among other grounds. In this chapter it is argued that this instance marks the first time universal jurisdiction was invoked to try nationals of a neutral country, or even stateless people—given the very particular circumstances surrounding Spanish Republicans in concentration camps—for war crimes. To that end, section II offers an overview of the legal and jurisdictional framework of the Dachau trials that determined the scope of the indictment and the trials against the five Spaniards. Section III focuses on whether the alleged neutrality of Spain during World War II acted as an obstacle to their prosecution and whether invoking universal jurisdiction was thus needed or—as it seems—whether relying on such a jurisdictional ground was more of a precautionary measure than a real problem of lack of jurisdiction. Section IV argues that this was the first time that such a ground was invoked to try stateless people, as in practice Spanish Republicans were completely neglected by Franco’s government, who considered them not to be Spaniards (nor did they receive any protection from any other country).

(II) US Military Courts’ Trials over the Joint Criminal Enterprise in the Concentration Camp Mauthausen

Proceedings before US military courts in Dachau were authorized by Joint Chiefs of Staff Directive 1023/10 of 8 July 1945 (JCS 1023/10),11 which instructed the (p.106) commanders in chief of the Allies’ occupation forces to identify and apprehend persons suspected of war crimes or other offences in their respective zones.12 It further stipulated that the courts would have jurisdiction ratione materiae over (a) atrocities and offences against persons or property constituting violations of international law, including the laws, rules and customs of land and naval warfare; (b) initiation of invasions of other countries and of wars of aggression in violation of international laws and treaties; and (c) other atrocities and offences, including atrocities and persecutions on racial, religious or political grounds, committed since 30 January 1933.13

Regarding their jurisdiction ratione personae, the directive specified that the term ‘criminal’ was meant to include all persons, ‘without regard to their nationality or capacity in which they acted, who have committed any of the aforementioned crimes’, including those who (a) had been accessories to the perpetration of such crimes; (b) had taken a consenting part therein; (c) had been connected with plans or enterprises involving their commission; or (d) had been members of organizations or groups connected with the commission of such crimes.14

JCS 1023/10 was the jurisdictional basis for the US trials over crimes perpetrated at concentration camps in Germany and Austria. Among these trials, two categories can be distinguished: (1) the so-called ‘parent cases’, that is to say the initial trials against the main leaders in the administration of each concentration camp whose personnel were in US custody; and (2) the ‘subsequent cases’ against any other official or employee involved in the criminal enterprise that each camp was found to be. The trials against the five Spaniards fell into the latter category.

(1) The parent case: US v Altfuldisch et al

The parent-case system was intended to facilitate expeditious proceedings: an initial trial concerning one concentration camp was held, and the findings in the case were then used to try other participants in the camp in subsequent trials ‘without having to re-establish the evidence’.15 The US military courts sitting in Dachau held six concentration camp trials.16 The one concerning the Concentration Camp Mauthausen, US v Altfuldisch et al, took place in the spring of 1946 and involved (p.107) sixty-one defendants accused of having committed war crimes. In this case, besides the findings as to the charges and particulars, the court also entered the following ‘special findings’:17

  • Concentration Camp Mauthausen was essentially a criminal enterprise.

  • It was impossible for anyone to be employed at or present in the camp without acquiring definite knowledge of the criminal practices.

  • Every military or civil employee or official connected with the camp, regardless of his capacity, was guilty of the crime of violating the laws and usages of war.18

Given the finding that the mass atrocities which took place at the camp were criminal in nature and that those involved in them acted in pursuance of a common design, military courts trying subsequent proceedings linked to the parent case were directed to presume—subject to rebuttal by appropriate evidence—that those shown by competent evidence to have participated in the mass atrocity knew of the criminal nature of that enterprise.19

The Deputy Judge Advocate for War Crimes stated that such special findings were ‘no attempt to sentence any individuals as a result of a trial “in absentia”’.20 Equally, if additional participants were brought to trial for their complicity in the mass atrocity, that would not mean ‘they have been previously tried because of these findings’.21 Instead, they would have an opportunity to show that they were not in Mauthausen. However, the fact that the special findings were used to establish guilt in further proceedings regarding crimes perpetrated in Mauthausen imposed on the defendants the burden of proof—indeed probatio diabolica (‘devil’s proof’)—of their own innocence,22 as they would have had to show that:

[T]‌hey were not in the Mauthausen Concentration Camp, that, if they were there, they did not know of the criminal nature of the operation, or that, if they did participate with knowledge of the criminal nature of the operation, the nature and extent of their participation was negligible and that the criminal operation was not encouraged, maintained, or furthered to any substantial degree by such negligible participation.23

(p.108) Such reasoning by the Deputy Judge Advocate implied an extremely rigid application of the common design charge, for it failed to take into consideration how a person came to be present in the camp, and did not discriminate between those who were military or civilian officials in the Nazi system and those who were inmates in the camp. This led in 1951 to a review by War Crimes Board of Review No. 1 in the case against Karl Horcicka and others (Case No. 000-50-5-32), where it was held that an accused who was neither ‘a member of the Waffen SS, Allegemeine SS, a guard, or a civil employee’ nor ‘a governmental, military or civil official of the camp’ was not within the class of persons presumed to be guilty by their mere presence there.24

(2) The trials against the ‘Spanish Kapos’

The trials against the so-called ‘Spanish Kapos’ were among the subsequent cases; they targeted officials, guards and civil employees, who might have participated in the day-to-day operations of the Concentration Camp Mauthausen or any of its sub-camps. According to the special findings in the parent case, their culpability for crimes against the laws and usages of the law was understood to be based on their knowledge of the criminal acts that took place in the camp.

The presumption of having participated in a joint criminal enterprise is evident in the charge sheet, which is remarkably vague by today’s standards. All five of the defendants were accused of violations of the laws and usages of war. In the case against Espinosa, three particular incidents formed the basis of the charges:25

  • ‘A killing of two or more non-German Nationals, inmates of the Gusen I Concentration Camp, the exact names and numbers of such persons being unknown’ (the qualification of ‘killing’ was later substituted for ‘mistreating’ by the court);26

  • ‘Assaults upon approximately ten non-German Nationals, inmates of the Gusen I Concentration Camp, the exact names and numbers of such persons being unknown’ (again, modifications to this charge were made by the court, which decided to disregard the specific number of ten victims);27

  • ‘Assaults upon two or more non-German Nationals, inmates of the Gusen 2 Concentration Camp, the exact names and numbers of such persons being unknown’.

In spite of all the ‘unknown’ information, these charges referred, to some extent, to specific criminal behaviours and incidents. That represents a very high level of (p.109) precision compared to the charges in the case against Laureano Nava and others, where the defendants were charged with having wrongfully encouraged, aided, abetted, and participated in the subjection of non-German nationals ‘to killings, beatings, tortures, starvation, abuses, and indignities, the exact names and numbers of such persons being unknown, but aggregating thousands’, acting in pursuance of a common design to do so.28 The only particulars in the indictment were the places where the charged acts had taken place (‘at or in the vicinity of the Mauthausen Concentration Camp, at Castle Hartheim, and at or in the vicinity of the Mauthausen Sub-camps’), the time frame (‘at various and sundry times between January 1, 1942, and May 5, 1945’) and the victims’ potential nationality, origin or status.29 Beyond that, no particulars were provided.

Proceedings took place in Dachau. The trial against Joaquín Espinosa was held from 9–12 May 1947, while the trial against Laureano Navas, Indalecio González, Moisés Fernández and Domingo Félez was held from 14–21 July 1947. Being subsequent trials concerning the criminal operation carried out in Mauthausen, the law to be applied in the two cases was to be subject to the special findings in the parent case. The defence therefore had the burden of proving that these men were not aware of the criminal nature of the operation carried out in Mauthausen (rather improbable given that they were themselves inmates in the camp, although some statements in the records indicate that lack of knowledge might have been considered a potential line of defence30) or that the nature and extent of their participation was negligible and in no way encouraged, maintained, or furthered the criminal operation. Neither the fact that they themselves were victims of the Nazi system nor the potential impact of the harsh living conditions on their behaviour were considered as a mitigating, if not exonerating, factor. Indeed, in his closing argument in US v Lauriano Navas, the Prosecutor took for granted that the defendants had been chosen as Kapos due to their criminal nature,31 and superior orders was not a valid defence here ‘for in most of the cases the capo [sic] was in complete charge of the detail as far as punishment was concerned’.32 Instead, the defence counsel, while assuming that Kapos were criminal prisoners, claimed that there was no evidence that the accused ‘were criminals before they were put in a concentration camp by the German authorities’.33 Therefore, the whole discussion was focused (p.110) on the determination whether they would fit in the definition of Kapos as criminal prisoners.

Furthermore, the cases do not seem to have been especially scrupulous regarding basic due process standards. Particularly controversial was the issue of language, as none of the defendants had a good command of either English or German, so translation into Spanish was needed. Among those appointed as translators was a court reporter who claimed that her Spanish was not good enough to perform as a translator in a trial where the death penalty might be applied.34 During the trials, it became evident that written declarations were not always made or read in a language that the witnesses and/or the defendants could understand.35 There were also complaints regarding the ‘professionalism’ of some witnesses,36 as well as about the fact that, after witnesses’ depositions, visitors attending the trials were leaking to other witnesses information about what was going on in the room.37 Moisés Fernández even claimed he had been mistreated during the interrogatories after his refusal to plead guilty to two killings.38

Such anomalies could probably have been avoided if Spain had become involved in these trials. However, there is no evidence that the Spanish government either showed any interest in the course of the proceedings or that the United States informed the Spanish authorities about them. That lack of communication is in no way surprising, given that Spain was clearly much more sympathetic to the Axis States than to the Allies. In any case, the aforementioned irregularities did not stop the courts finding four of the men (Espinosa, Nava, Fernández and González) guilty of the charge of violation of the laws and usages of the law, acting in pursuance of the common design that had already been established in the parent case.39

All four admitted during the trial to having performed duties either as Oberkapo, Kapo or assistant Kapo.40 Joaquín Espinosa was specifically accused of several incidents –including beatings allegedly resulting in death while acting as an assistant Kapo (1942–1943) and a Kapo (1944–1945) in the ‘potatoes detail’ in Gusen. But evidence was not sufficient to prove the most serious charges, so, in order to adjust the charges to the proven facts, the court modified the wording of the indictment by replacing the original reference to ‘killing’ with ‘mistreating’, although (p.111) according to the prosecutor such a crime did not exist.41 Espinosa received a three-year sentence commencing on 5 May 1945, at Landsberg war crimes prison.

Indalecio González, aka ‘Astoria’ or ‘Asturias’, was accused of having been an Oberkapo who often beat prisoners, sometimes to death. He was sentenced to death, and, although many petitions of clemency were received from the Spanish Republican government in exile, he was hanged on 2 February 1949.

Laureano Nava was accused of having regularly beaten inmates while performing duties as an assistant Kapo. Two prisoners were alleged to have died as a result of the hard beatings, in spite of the fact that Nava was crippled in his right hand due to a wound he had received in the Spanish Civil War. Sentenced to life imprisonment, he requested a revision of the sentence. His lawyer proved that life imprisonment had been based on the testimony of just two witnesses.42 In 1951 his sentence was reduced to time served and he was released on 18 January 1952.

Moisés Fernández, aka ‘César’ or ‘Caesar’, was accused of having been an assistant Kapo and having mistreated prisoners, allegedly causing the death of one of them. He was sentenced to twenty years’ imprisonment. Without the advice of a lawyer, he put all his efforts into getting his case reviewed. In 1951 the sentence was reduced to fifteen years on the basis that there was not enough evidence to support the sentence. The Judge Advocate had supported a reduction after finding that Fernández had committed, at best, a minor assault, which made the sentence excessive, considering the case as a whole and comparing it to similar cases.43 Attention was also paid to his delicate health (he suffered from tuberculosis). Fernández died on 24 June 1952, before being released.

Domingo Félez, who had worked as a camp barber, was accused of marking the inmates with letters that would indicate whether they were to be sent to the crematory or to the gas chamber and of having struck an inmate once. He was initially sentenced by the court to two years’ imprisonment (commencing 13 May 1945), but immediately released (on 28 July 1947), as he had already been in prison for longer than the sentence period.44 Some months later, in January 1948, the Deputy Judge reviewing the case considered the evidence insufficient to show that he had encouraged the common design or participated therein. Upon his recommendation, the sentence was disapproved.45

(p.112) (III) The Trials against the ‘Spanish Kapos’: A Challenge to US Military Courts’ Jurisdiction?

The trials against Joaquín Espinosa, on the one hand, and Laureano Nava, Indalecio González, Moisés Fernández as well as Domingo Félez, on the other hand, hold a special interest because, not being nationals of an enemy country but of a neutral state, they challenged the jurisdiction of the military courts.

However, whether Spain was a neutral country during World War II is a matter of opinion. Indeed, Franco’s Nationalist regime formally adopted a position of neutrality at the beginning of World War II, formalized in two agreements signed as early as December 1936 with Italy and in March 1939 with Germany. But when a German victory became likely, belligerence was considered by the Spanish government, as a means to satisfy certain territorial aspirations.46 In 1940, after the defeats of the Netherlands and Belgium, Spain changed its neutral status into one of ‘non-belligerence’, a qualified form of neutrality that in practice was a status prior to belligerence.47 This concept was invented by Mussolini in 1939 to express Italy’s support (short of participation in the war) for Germany.48 Only the German refusal to meet the conditions imposed by Franco’s government in order for Spain to fight by Germany’s side prevented Spain from taking the further step towards belligerence. Later on, when the United States entered the war and it became obvious that this could have a negative effect on the Spanish interests,49 a clear position from Spain was needed: either join the Axis or adopt genuine neutrality.50 To that end, on 1 October 1943, Franco announced in a speech that Spain had returned to ‘watchful neutrality’.51

(p.113) (1) Overcoming Spanish ‘neutrality’ through universal jurisdiction

Debatable as it may be, Spanish ‘neutrality’ during World War II seems to have caused some uneasiness in the Deputy Judge Advocate Office in charge of reviewing the sentences and recommending them for approval. Even though the question had not been raised by the defence in the trials, the review officer considered that the jurisdictional problem merited discussion. The following argument was made:

War criminals, brigands, and pirates are the common enemies of all mankind and all nations have an equal interest in their apprehension and punishment for their violations of international law. Concerning this question…every independent state has the judicial power to punish ‘piracy and other offenses against the common law of nations, by whomsoever and wheresoever committed’.52

According to this reasoning, these cases were to be seen as typical examples of universal jurisdiction exercised by a state in absence of any direct link with a crime perpetrated neither in the territory of the judging authority nor by or against nationals of that state.53 Given that war crimes were delicta juris gentium, whose punishment was an issue of general interest to any country, all states had the jurisdiction to try and punish them.

There are some precedents for this in the aftermath of World War II.54 The earliest examples, though, concern German defendants or nationals of Axis States, as in the Hadamar trial (8–15 October 1945), the Dachau parent case (15 November–13 December 1945), the Almelo trial (24–26 November 1945), and the Zyklon B case (1–8 March 1946).

The Hadamar trial took place before a United States Military Commission sitting at Wiesbaden (Germany). The defendants, German nationals, were accused of having taken part in the deliberate killing, by injection of poisonous drugs, of hundreds of Polish and Soviet nationals in a sanatorium in Hadamar, Germany. Despite the fact that the crimes had been perpetrated by non-United States nationals, outside United States territory, and against non-United States nationals, the Military Commission decided to assume jurisdiction in the case. One of the reasons adduced to take such decision was:

[T]‌he general doctrine recently expounded and called ‘universality of jurisdiction over war crimes’,…according to which every independent State has, under International Law, jurisdiction to punish not only pirates but also war criminals in its custody, regardless of the nationality of the victim or of the place where the offence was committed, particularly where, for some reason, the criminal would otherwise go unpunished.55

(p.114) This main reasoning was further supported by two other arguments: the United States’ direct interest in punishing crimes against nationals of its allies, and the assumption of its local sovereignty in the United States zone of occupation (therefore deriving its jurisdiction both from the principle of territoriality and the principle of active personality).

The principle of universal jurisdiction was also mentioned in the Dachau camp trial to justify the jurisdiction of the United States military court over crimes against non-members of its forces that had been committed before the United States took control over the territory where they had been perpetrated.56 In this case, two of the defendants were non-German (Johann Schoepp, a Romanian, and Dr Fridolin Karl Puhr, an Austrian),57 but that fact was not taken into consideration when invoking the principle.

As far as the Almelo trial and the Zyklon B case are concerned, both took place before British courts, sitting in Almelo, The Netherlands, and Hamburg, Germany, respectively. In the Almelo trial, four German nationals were tried for the extra- judicial killing of a British prisoner of war and of a Dutch civilian, as well as espionage and war treason. The jurisdiction of the British court was established once more on the basis of universal jurisdiction over war crimes.58 The universal jurisdiction argument was again supplemented by the principle of the direct interest of the judging state, British sovereignty over its zone of occupation, and the active personality principle. The Zyklon B case involved three German nationals accused of supplying poison gas used to kill Allied nationals (although seemingly non-British) interned in concentration camps, knowing that the gas was to be so used. Unlike in the Hadamar and the Almelo trials, the main argument put forward to establish British jurisdiction was British local sovereignty over its zone of occupation (active personality and territoriality). Universal jurisdiction was in this case a supplementary ground for jurisdiction, together with the state’s direct interest in punishing the crimes perpetrated against Allied nationals.59

To be sure, there had been trials of neutral countries’ nationals, but no arguments were made regarding universal jurisdiction. For instance, in the first Ravensbrück trial, a Swiss citizen, Carmen Mory, was sentenced to death by a British military court sitting in Hamburg.60 However, the court did not invoke universal jurisdiction. The most probable reason for this seems to have been that no complaints were expected to be lodged by the Swiss government which was perfectly aware of the steps taken in the proceedings against Mory. A report by Captain John Sigrid da Cunha describing a meeting with a representative of the Swiss Ministry of Justice (p.115) supports this. According to Captain da Cunha, the Swiss government did not object to Mory’s trial and sentence. Given the serious nature of the crimes alleged, it was not ‘desired in any way to use diplomatic influence or action with a view to actively intervening in the legal process’.61

At least two more trials against Spaniards took place in France in 1947, just weeks before the trial against Espinosa started. In neither trial was the problem of jurisdiction raised. The first one was the trial of José Pallejà Caralt by a military court in Toulouse. Pallejà Caralt was found guilty of having committed espionage. According to the court, inasmuch as he had worked as a Kapo, he had been feeding intelligence to Germany with a view to favouring its enterprises against France (‘en vue de favoriser les entreprises de cette puissance contre la France’), in particular by imposing over the inmates an inhumane work that benefited the enemy and caused the death of many Frenchmen. He was sentenced to death on 11 March 1947.62 The second trial, on 25 April 1947, saw Gregorio Lendínez Montes face a military court in Paris on charges of murder and ill-treatment. Lendínez was acquitted of all the charges.63 The records of Pallejà’s appeal proceedings before the Cour de Cassation show that the issue of his Spanish nationality was not controversial.64 Actually, the court held that crimes against the security of the state could be perpetrated both by members of the French Army and by foreigners serving in the army, according to a decree-law of 29 July 1939.65

In view of these precedents, it can be concluded that the ‘Spanish Kapos’ trials seem to have combined for the first time neutrality and universal jurisdiction regarding war crimes.

(2) A real need to invoke universal jurisdiction?

The interest that these two trials may have in tracking the history of universal jurisdiction increases when one considers that there was no call for universal jurisdiction to legitimate the authority of US military courts to try the five Spaniards.

To begin with, JCS 1023/10 provided that anybody who had committed any of the listed crimes was considered to be a criminal, regardless of his or her nationality. It imposed no Axis nationality requirement for alleged war criminals. This did not (p.116) go unnoticed by the Deputy Judge Advocate, who after invoking universal jurisdiction in his review of the sentence, added that:

Military Government Courts have jurisdiction over the nationals of any country who are in the United States Zone of Occupation, except as to certain classes of American and other nationals, e.g., military personnel, which are not pertinent to the jurisdictional questions here involved. Concerning jurisdiction over war crimes, no limitation is imposed.66

Theoretically, there also existed a number of additional grounds that could have been used to justify the jurisdiction of US courts in these cases. For instance, jurisdiction could have been based on ‘the right of a belligerent, on the total breakdown of the enemy owing to debellatio, to take over the entire powers of the latter, including the power to make laws and to conduct trials’.67 Such a power was assumed by the four Allied powers occupying Germany in the ‘Declaration regarding the defeat of Germany and the assumption of supreme authority with respect to Germany by the Governments of the United States of America, the Union of Soviet Socialist Republics, the United Kingdom and the Provisional Government of the French Republic’, made in Berlin on 5 June 1945. As indicated above, the local sovereignty of the Allied powers over each of their respective zones of occupation was one of the reasons given to support British and US jurisdiction to try war criminals in the Hadamar and Almelo trials, as well as in the Zyklon B case. Such special sovereignty would have allowed them to prosecute crimes perpetrated in their zone of occupation according to the principle of territoriality. A further reason cited in the aforementioned cases which could have applied in the ‘Spanish Kapos’ cases was the theory of the direct interest. This theory was adduced in the Hadamar trial to justify the jurisdiction of a US military commission over crimes against non-US nationals which were not committed in the US territory nor by US nationals. As already mentioned,68 the military commission answered in the affirmative not only on the basis of universal jurisdiction over war crimes and the assumption of supreme authority in Germany by the four Allied powers after debellatio, but also the direct interest that the United States (and mutatis mutandi every Allied state) had in punishing the perpetrators of crimes committed against nationals of allies ‘engaged in a common struggle against a common enemy’.69

Finally, a slightly more convoluted basis for jurisdiction was the nationality of the victims in Mauthausen. As the charges in Altfuldisch and Lauriano Navas indicate, there were US citizens among the inmates in the camp. While this became the core argument in favour of the military court’s jurisdiction in the parent case,70 in the ‘Spanish Kapos’ cases direct victims of the specific crimes committed were not US nationals. However, in the same manner as guilt was established as a consequence of the participation in the joint criminal enterprise, the factual elements (p.117) in that wider context could also have been used to justify the jurisdiction of US military courts in the subsequent trials.

Given the variety of grounds of United States jurisdiction, what makes the references to universal jurisdiction in the ‘Spanish Kapos’ cases especially valuable is that they provide precedents to support the existence of an international practice with respect to this principle and its applicability to nationals of neutral states.

(IV) A Precedent of Universal Jurisdiction Regarding Stateless Persons?

The particular circumstances surrounding the Spanish Republicans in Mauthausen further suggest that they were part of the very first cases where universal jurisdiction was invoked to try stateless persons. The Deputy Judge Advocate decided to justify the authority of the court through universal jurisdiction because the defendants were nationals of a neutral country. What he did not take into consideration, though, was that Spaniards in concentration camps lacked protection from the Spanish government, indeed from any other state, which in turn would mean that the five defendants were de facto stateless persons.71

(1) Spaniards who were not Spaniards

The legal status of the Spanish republicans who left Spain after the Civil War was far from clear and confusion spread to the concentration camps where they were interned. It is well-known that Nazis used triangles of different colours to classify inmates. In most of the concentration camps (such as Dachau, Buchenwald-Dora, Sachsenhausen, Bergen-Belsen or Ravensbrück),72 the Rotspanier (‘Red Spaniards’, as they were called) wore the red triangle that marked them as political prisoners. However, those in Mauthausen were marked with the blue triangle with the letter S inside. Although blue was supposed to be given to ‘emigrants’ and usually identified foreign forced labourers, its attribution to Spaniards in Mauthausen has been interpreted in different ways.73

The most widespread theory is that the blue triangle was given to the exiled Republicans because of Franco’s refusal to consider them Spanish citizens. The story goes that, during a conversation between Joachim von Ribbentropp, Reich Minister of Foreign Affairs, and Ramón Serrano Súñer, Spanish Minister of the Interior, in September 1940, Ribbentropp asked Serrano Súñer what Germany was to do with all the Republicans who had been taken prisoners. Serrano Súñer was said to have answered that those people were reds, not Spaniards,74 thus clearing the way for the (p.118) Nazis to do anything they pleased with them.75 Unfortunately, there are no written records of such a conversation.76 Furthermore, the dates do not match, for the first convoy carrying Spaniards arrived at Mauthausen in August 1940.77

Still, indications exist that Franco’s government was aware of the fact that there were Spaniards in German concentration camps and nothing was done to assist them. From August to October 1940, the German Embassy in Madrid sent several notes verbales to the Spanish Minister of Foreign Affairs, asking whether the Spanish Government intended to take charge of a thousand Red Spaniards under arrest in France. The Spanish Government did not respond to this request.78 Also, the Spanish Home Office did request information on the situation of Indalecio González after he had been sentenced to the death penalty, but there is no indication of further action taken.79 Instead, the Republican government in exile sent many petitions for clemency on Gonzalez’s behalf, but they were not taken into consideration by US officers both because they ‘contained no new evidence or other matters which had any bearing on the case’ and because they could not locate the senders (supposedly in Paris).80

Were the Spaniards stateless? The charges in Altfuldisch 81 and in Lauriano Navas 82 include a list of national groups that had been subjected to alleged atrocities.83 Among them, reference was made to ‘stateless persons’, but surprisingly enough not to Spaniards, in spite of the fact that they actually became a relevant group in Mauthausen.84 The charges also refer to ‘other non-German nationals’, but that seems to be a residual clause, inappropriate for such a large group of inmates as the Red Spaniards were. To include them under the heading of stateless persons would (p.119) therefore seem quite reasonable. On the other hand, the nationalities expressly listed in the Altfuldisch and Lauriano Navas charge sheets referred only to Allied states, which may have been a way to emphasize the interest of the United States in trying crimes committed against nationals of Allied states. There would have been no reason for Spain, considered to be a neutral country, to be on that list. Unfortunately, absent an explanation for the selection of nationalities included in the charges, no definitive conclusions can be drawn on the issue as to whether the United States might at some point have considered Spaniards as stateless persons.

(2) Protecting Spanish refugees…inside the borders

As well as being abandoned by the Spanish government, the Republicans did not receive much protection from other foreign states. France granted the Spanish Republicans refugee status by a decree of 15 March 1945. This decree extended the application of the Convention of 28 October 193385 to the Spanish refugees. According to Article 2 of the decree, persons holding or having held Spanish citizenship, not holding another citizenship, and who enjoyed neither de jure nor de facto the protection of the Spanish government, would be considered Spanish refugees.86 As a result, they were granted a special status, which included the right to an identity and travel certificate, similar to the Nansen passport,87 and the right of residence in France, which implied the right to not be expelled from the French territory (except on national security or public order grounds) and of non-refoulement to Spain.88 Also, they would have a specific legal status regarding their personal statute, rights resulting from marriage, and access to court in equal conditions as French nationals. However, the recognition of such rights did not mean that the Spanish refugees could enjoy diplomatic protection from the French authorities.

Disregarded by the Spanish government and enjoying a rather limited refugee status inside France that in no way included protection beyond the French borders, the five Spanish defendants in Dachau lacked any kind of protection from their own country or a third one, what made them de facto stateless persons. If this circumstance is to be taken into consideration, these two cases would then be the first, and presumably the only cases, where universal jurisdiction was invoked to try stateless persons for war crimes. Although—as already pointed out—such an invocation was unnecessary because the court had jurisdiction regardless of the nationality of the defendant.

(p.120) (V) Conclusions

In the years following World War II, subsequent cases of low-profile alleged war criminals, like the ‘Spanish Kapos’ trials, could easily go unnoticed, the focus being put on major war criminals’ accountability. Even at the domestic level these cases were hidden. Propaganda by Franco’s government to discredit its enemies in the Civil War or a complaint by the Republican government in exile to denounce the low due process standards might have been expected. Nevertheless, silence concerning these trials suggests that they made both sides uncomfortable, because they demonstrated that Spaniards had been interned at concentration camps with Franco’s government abandoning them to their fate, while at the same time casting doubt on the Republican fight for democracy and freedoms. Distance and time allow analysing these cases beyond the domestic limits imposed by the confrontation in the Spanish Civil War. Instead, when looking at them from an international legal approach, it becomes evident that the unusual circumstances surrounding these two cases make them interesting in several ways.

To begin with, the framing of these cases as part of the joint criminal enterprise undertaken in Mauthausen, as established in the parent case, shows how extremely rigidly military courts applied the ‘common design’ theory of guilt in the aftermath of World War II. Espinosa, Nava, González, Fernández and Félez did not belong to the Nazi military or civil administration that designed and put into effect the machinery of Mauthausen. Rather, they were trapped in it. Victims of the Nazi system themselves, their conduct was arguably the result of a combination of self-preservation and brutalization, perhaps to be expected given the harsh living conditions they had to endure as inmates. However, the judgment did not take this factor into consideration nor any other element related to it that could have allowed for a mitigation of the sentence, if not for the exclusion of responsibility. Fortunately, the inflexibility of this criterion was later tempered, which enabled a fairer approach when applying the theory of joint criminal enterprise.

Another interesting feature of these trials is the remarkable disregard for basic due process guarantees showed by the military courts trying these two cases. Although it is not the aim of this analysis to establish the degree of meticulousness followed by military courts and commissions trying war crimes in the years after World War II, the due process point nonetheless warrants attention. The pressure to punish thousands of alleged perpetrators likely led courts to put aside ‘burdensome’ details such as due process in order to increase efficiency. However, it is also true that these two cases were more difficult than most of the trials the military courts carried out, for two reasons. One was language. The United States military courts were supposed to try mainly German nationals, so, in the ‘Spanish Kapos’ trials, the lack of Spanish-speaking personnel lead to improvization. The other complicating factor was that the defendants came from Spain, a ‘neutral’ country (albeit with Axis sympathies) and one that did not seem to care about the destiny of five people who had fought against the government in power. Therefore, no serious cooperation with Spain was possible in order to provide the defendants (p.121) with lawyers or supervise the course of proceedings. Again, a calmer analysis of the circumstances at the review level allowed for the correction of the mistakes made at trial, which benefitted Laureano Nava, who had his sentence to life imprisonment reduced after proving that it had been imposed on the basis of only two witness testimonies.

The most remarkable contribution of these cases to international jurisprudence concerns jurisdiction. The fact that the defendants were not nationals of an Axis country but of a neutral state somehow seemed to challenge the authority of US military courts. To overcome this hurdle, universal jurisdiction was invoked. This seems to have been an exceptional use of the principle. In fact, considering that as former members of the Republican Army, the five defendants did not get protection from Spain, or from any other country, they actually faced trial as de facto stateless persons. Therefore, this was arguably the first time that the principle of universal jurisdiction was used to justify the trial of stateless persons.

There is also a significant lesson to be learned from these cases when it comes to the use of universal jurisdiction by third-country courts. The ‘Spanish Kapos’ cases are a puzzling example of the results yielded by an ‘industrial’ justice system such as that set up to deal with the horrors of World War II. Scant consideration of individual circumstances is an unfortunate feature of such a justice system. This can only lead to injustice. The possibility of a serious miscarriage of justice might go some way to explain why the United States’ main concern was to justify their jurisdiction in order to avoid future claims as to the trials’ legitimacy. However, a wider and more complex approach to the specific circumstances of the Spanish defendants would have been desirable. Obviously, circumstances surrounding the contemporary use of universal jurisdiction are very different: it is applied by domestic courts sitting in countries that do not need to be rapidly reconstructed, as Germany was in the aftermath of World War II, nor need justice be done expeditiously. Nevertheless, it implies that foreigners will be tried by a court that may not speak the language or may not know the context in which crimes were perpetrated. As the ‘Spanish Kapos’ trials illustrates, great care must be taken when dealing with universal jurisdiction cases in order to guarantee due process and provide real justice.

Notes:

(1) Names in the official documents contain several spelling mistakes. For instance, the correct spelling of Lauriano Navas should be Laureano Nava, while Indalecio González’s surname was spelled Gonzaless in the documentation, and Domingo Félez was called Felix Domingo during the whole proceedings (although he is correctly named at Joaquín Espinosa’s trial, where he acted as a witness). Here the proper spellings will be preferred, although the original spelling will be kept when citing the name of the cases or directly quoting the content of a document.

(2) Many Spaniards fought in the European battlefields, both with the Allies and beside the Axis troops. The last ones were integrated into the so-called ‘Blue Division’ (División Azul or Spanische Blaue Division), a hybrid military unit, somewhere between a regular unit of the Spanish Army and a voluntary unit (Emilio Sáenz Francés, Entre La antorcha y la esvástica: Franco en la encrucijada de la Segunda Guerra Mundial (Madrid: Actas, 2009), 88), that was sent to support the German efforts in the new Russian front.

(3) Luis Reyes, Españoles en la Segunda Guerra Mundial (Madrid: Aldaba Ediciones SA, 1990), 11.

(4) Most of those Companies, created in 1939 to solve the issue of the thousands of exiled republicans arriving in France, were sent to the Maginot Line and to the French-Belgian border, some were sent to the Alps and the rest were distributed throughout France.

(5) Eduardo Pons Prades, El Holocausto de los republicanos españoles: Vida y muerte en los campos de exterminio alemanes (1940–1945) (Barcelona: Belacqva, 2005), 41.

(6) David Wingeate Pike, Spaniards in the Holocaust: Mauthausen, the Horror on the Danube (New York, NY: Routledge, 2000), 12.

(7) However, it seems that neither Spaniards in the Companies nor in the French army were granted prisoner-of-war (POW) status during their staying in Stalags, but instead they were treated as anti-Nazi elements: Reyes, above n 3, 11–13. But see Benito Bermejo and Sandra Checa, Libro Memorial: Españoles deportados a los campos nazis (1940–1945) (Madrid: Ministerio de Cultura, 2006), 17–19.

(8) For a list of sub-camps see Mauthausen Memorial [website], <http://en.mauthausen-memorial.at/index_open.php> (accessed 24 February 2013).

(9) Falk Pingel, ‘Social life in an unsocial environment. The inmates’ struggle for survival’, in Jane Caplan and Nikolaus Wachsmann (eds), Concentration Camps in Nazi Germany: The New Histories (New York, NY: Routledge, 2010), 59.

(10) On the role and position of the Kapos at concentration camps, see Eugen Kogon, Sociología de los campos de concentración (Madrid: Taurus, 1965), 106–8; Wolfgang Sofsky, The Order of Terror: The Concentration Camp (Princeton, NJ: Princeton University Press, 1993), 132; Vincenzo and Luigi Pappalettera, Los S.S. tienen la palabra. Las leyes del campo de Mauthausen reveladas por las Schutz-Staffeln (Barcelona: Laia, 1969), 31.

(11) Joint Chiefs of Staff, Directive on the Identification and Apprehension of Persons Suspected of War Crimes or Other Offenses and Trial of Certain Offenders, 1023/10 (JCS 1023/10). Draft in Telford Taylor, Final Report to the Secretary of the Army on the Nuernberg War Crimes Trials Under Control Council Law No 10 (Washington DC: Government Printing Office, 1949), 244–5.

(12) The general authority for criminal procedures against war criminals in Europe, though, is to be found in the Moscow Declaration of 1 November 1943. JCS 1023/10 was later used as the basis for Control Council Law No 10: Taylor, above n 11, 244.

(13) JCS 1023/10, [2]‌.

(14) Exceptionally, only persons who had held high political, civil or military (including General Staff) positions in Germany or in one of its allies, co-belligerents or satellites, or in the financial, industrial or economic life of any of these countries, were considered to be accountable for invasions and wars of aggression: JCS 1023/10, [2]‌.

(15) Tomaz Jardim, The Mauthausen Trial: American Military Justice in Germany (Cambridge, MA: Harvard University Press, 2012), 49.

(16) Concentration Camps Dachau, Buchenwald, Flossenbürg, Mauthausen, Mittelbau-Dora/Nordhausen and Mühldorf.

(17) A court-martial ‘may characterise or explain the finding, (or sentence,) or accompany it with animadversions, recommendations or other remarks’: William Winthrop, Military Law and Precedents (Washington DC: Government Printing Office, 2nd edn, 1920), 385.

(18) US v Hans Altfuldisch (Review and Recommendations) (Deputy Judge Advocate’s Office, 7708 War Crimes Group, European Command, APO 178, Case No 000-50-5, March 1946) (Altfuldisch Review), 4: ‘any official, governmental, military or civil, whether he be a member of the Waffen SS, Allgemeine SS, or any guard, or civil employee, in any way in control of or stationed at or engaged in the operation of the Concentration Camp Mauthausen, or any or all of its by-camps in any manner whatsoever, is guilty of crimes against the recognized laws, customs, and practices of civilized nations and the letter and spirit of the laws and usages of war, and by reason thereof is to be punished’.

(19) Letter of the Theatre Commander, Mass Atrocity Subsequent Proceedings, 14 October 1946, file AG 000.5 WCR-AGO, subject: ‘Trial of War Crimes Cases’, US Forces, European Theatre, [12].

(20) Altfuldisch Review, above n 18, 17.

(21) Altfuldisch Review, above n 18, 17–18.

(22) Jardim, above n 15, 49.

(23) Altfuldisch Review, above n 18, 18.

(24) US v Karl Horcicka et al (War Crimes Board of Review No. 1) (Office of the Judge Advocate, Headquarters, European Command, Case No 0000-50-5-32, 30 April 1948) (Horcicka Review), 2.

(25) US v Joaquín Espinosa (Review and Recommendations) (Deputy Judge Advocate’s Office, 7708 War Crimes Group, European Command, APO 407, Case No 000-Mauthausen-19, 28 January 1948), (Espinosa Review), 1.

(26) US v Joaquín Espinosa (Trial) (Military Government Court, Case No 000-Mauthausen-19, 9–12 May 1947) 7/8 (Espinosa Trial).

(27) Espinosa Trial, above n 26, 8/8.

(28) US v Lauriano Navas (Review and Recommendations) (Deputy Judge Advocate’s Office, 7708 War Crimes Group, European Command, APO 407, Case No 000-50-5-25, 14 January 1948) (Navas Review), 1.

(29) ‘Poles, Frenchmen, Greeks, Jugoslavs, Citizens of the Soviet Union, Norwegians, Danes, Belgians, Citizens of the Netherlands, Citizens of the Grand Duchy of Luxembourg, Turks, British Subjects, stateless persons, Czechs, Chinese, Citizens of the United States of America, and other non-German nationals who were then and there in the custody of the then German Reich, and members of the armed forces of nations then at war with the then German Reich who were then and there surrendered and unarmed prisoners of war in the custody of the then German Reich’: Navas Review, n 28 above.

(30) See US v Lauriano Navas (Trial) (Military Government Court, Case No 000-50-5-25, 14–21 July 1947) 13/3 (Navas Trial) (testimony by Indalecio González stating that he had never heard from anyone in the camp that someone beat prisoners to death).

(31) Navas Trial, above n 30, 16/2 (Prosecutor’s closing argument).

(32) Navas Trial, above n 30, 16/4.

(33) Navas Trial, above n 30, 16/4 (Defense Counsel’s closing argument).

(34) The Washington Post published a letter to the editor signed with her name, criticizing ‘the callous unconcern whether [the Spaniards] understood the proceedings’ and her assignment as a translator in the Lauriano Navas case: Eve Fridell Hawkins, ‘Ilse Koch’, The Washington Post, 27 September 1948, 12. However, inquiries on this issue concluded that she had never expressed any protest at the time of her appointment or during the trial: letter from Colonel J.L. Harbaugh, Judge Advocate, to Chief, War Crimes Branch, Civil Affairs Division, Department of the Army Special Staff, Request for Information (US v Lauriano Navas et al, Case No. 000-50-5-25), October 1948, 3.

(35) See Navas Trial, above n 30, 4/15 (testimony by Pedro Gómez, witness for the Prosecution) and 11/15–11/16 (testimony by Moisés Fernández, defendant), Espinosa Trial, above n 26, 6/14–6/15.

(36) Navas Trial, above n 30, 14/6.

(37) Navas Trial, above, n 30, 4/1.

(38) Navas Trial, above, n 30, 11/16.

(39) According to the Orders on Review, the specific offence committed was ‘participation in Mauthausen Concentration Camp mass atrocity’.

(40) Navas Trial, above, n 30, 11/11 (Fernández), 13/11 (González), 14/14 (Navas). As for Joaquín Espinosa, see Espinosa Trial, above n 26, 6/6.

(41) Espinosa Trial, above n 26, 8/8.

(42) US v Lauriano Navas (Review of the War Crimes Branch—Accused: Lauriano Navas) (Office of the Judge Advocate, Headquarters, European Command, Case No 0000-50-5-25, 18 April 1951), [4.b.2].

(43) In the report, the reviewing officer also recalled the aforementioned doctrine established by the War Crimes Board of Review at US v Karl Horcicka—stating that the mere presence in the camp of the alleged perpetrator, irrespective of his position there, was not enough to presume his guilt: Horcicka Review, above n 24, 2—(US v Lauriano Navas (Review of the War Crimes Branch—Accused: Fernández, Moisés) (Judge Advocate Division, Headquarters, European Command, AFO 403, US Army, Case No 0000-50-5-25, 18 April 1951), [3.a.2]). Although no further indication as to whether Fernández fell into one of the categories to which the presumption of guilt should apply, it might have influenced the recommendation to reduce the sentence.

(44) Memorandum from AG 383 JAG to Director, War Criminal Prison, Release of prisoner in the Case of the United States v Lauriano Navas, et al (Case No. 000-50-5-25), 15 March 1948.

(45) Navas Review, above n 28, 10.

(46) Franco’s government hoped that in exchange Germany would help Spain to expel the British from Gibraltar and to expand in Northern Africa. See Rafael García Pérez, Deuda, Comercio y Nuevo Orden: España y el Tercer Reich durante la Segunda Guerra Mundial (1939–1945) (Madrid: Ed. de la Universidad Complutense de Madrid, 1993), 291–3; Juan Carlos Jiménez Redondo, ‘La política española en los años de la II Guerra Mundial’, Bulletin d’Histoire Contemporaine de l’Espagne, 22 (1995), 30. Plans were even made to invade Portugal, see Gustau Nerín and Alfred Bosch, El imperio que nunca existió. La aventura colonial discutida en Hendaya (Barcelona: Plaza & Janés, 2001), 41, 49; Manuel Ros Agudo, La gran tentación: Franco, el imperio colonial y los planes de intervención en la Segunda Guerra Mundial (Barcelona: Styria, 2008), 269–79.

(47) Manuel Espadas Burgos, Franquismo y política exterior (Madrid: Rialp, 1987), 92. The practice concerning non-belligerence during the Second World War is discussed at 92–5.

(48) Edward R. Cumming, ‘The evolution of the notion of neutrality in modern armed conflicts’, Military Law and Law of War Review, 17 (1978), 48.

(49) The participation of the United States meant increasing economical restrictions, a higher external pressure over Franco’s government and the possibility of the Allies attacking the Atlantic islands without Spain having means of defence: Jiménez Redondo, above n 46, 32–3.

(50) Jiménez Redondo, above n 46, 32.

(51) Ángeles Egido León, ‘Franco y la Segunda Guerra Mundial. Una neutralidad comprometida’, Ayer, 57 (2005), 122.

(52) Navas Review, above n 28, 9. See also Espinosa Review, above n 25, 6.

(53) Marc Henzelin, Le principe de l’universalité en droit pénal international. Droit et obligation pour les états de poursuivre et juger selon le principe de l’universalité (Basel/Geneva/Brussels: Helbing & Lichtenhahn/Faculté de Droit de Genève/Bruylant, 2000), 29.

(54) Henzelin, above n 53, 407.

(55) US v Alfons Klein (Trial) 1945, 1 War Crimes Law Reports 46, 53 (US Military Commission appointed by the Commanding General Western Military District, USFET) (Hadamar Trial).

(56) US v Martin Gottfried Weiss (Review of Proceeding of General Military Court) (Office of Judge Advocate, Third US Army and Eastern Military District, Case No. 000-50-2, 15 November– 13 December 1945) (Weiss Review), 140.

(57) (Weiss Review), above n 56, 2.

(58) Prosecutor v Otto Sandrock (Trial) 1945, 1 War Crimes Law Reports 35, 42 (British Military Court for the Trial of War Criminals, Court House, Almelo, Holland).

(59) Prosecutor v Bruno Tesch (Trial) 1946, 1 War Crimes Law Reports 93, 103 (British Military Court, Hamburg).

(60) Prosecutor v Johan Schwarzhüber (Trial) (Military Court held at No. 1 War Crimes Court, Curiohaus, Rothenbaumhaussee, Hamburg, 5 December 1946–3 February 1947).

(61) Record of negotiations with regard to the trial of Carmen Mory, Capt. J.W. da Cunha, 4 September 1946 (UK National Archives, file WO 309/684). The representative of the Swiss Ministry of Justice would have further expressed gratitude on the part of the Political Department of the Foreign Office for the correctness of the British attitude in contacting and informing about the details and facts of the forthcoming trial of a Swiss citizen, ‘thus avoiding in advance the possibility of diplomatic repercussions’.

(62) Prosecutor v José Pallejà Caralt (Trial) (Tribunal Militaire Permanent de la 5ème Région, Toulouse, 25 April 1947).

(63) Prosecutor v Gregorio Lendínez Montes (Trial) (2ème Tribunal Militaire Permanent de Paris, 25 April 1947).

(64) Prosecutor v José Pallejà Caralt (Appeal) (Cour de Cassation de Paris, 23 July 1947), 1.

(65) Décret-loi portant codification des dispositions relatives aux crimes et délits contre la sûreté extérieure de l’État, 29 July 1939.

(66) Navas Review, above n 28, 9.

(67) United Nations War Crimes Commission, Law Report of Trials of War Criminals (His Majesty’s Stationery Office, 1949) vol 15, 27. See also Henzelin, above n 53, 405.

(68) See section II.A. of this chapter.

(69) Hadamar Trial, above n 55, 53.

(70) Altfuldisch Review, above n 18, 12.

(71) Paul Weis, ‘The Convention Relating to the Status of Stateless Persons’, International and Comparative Law Quarterly, 10 (1961), 260.

(72) Montserrat Roig, Els catalans als camps nazis (Barcelona: Edicions 62, 5a ed, 1987), 130.

(73) The Spanish Republicans and some stateless Russians were the only ones to wear the blue triangle in Mauthausen: Wingeate Pike, above n 6, 15.

(74) Roig, above n 72, 15.

(75) The preliminary report to United Nations on the issue of refugees assumed this version (Jacques Vernant, Les réfugiés dans l’après-guerre: Rapport préliminaire d’un groupe d’étude sur le problème des réfugiés (Geneva: ONU, 1951), 166), although stating that it was the Spanish Minister of Foreign Affairs who intervened (Serrano Súñer held that position from October 1940).

(76) Roig, above n 72, 16–17. In an interview Roig asked Serrano Súñer whether he had talked about this issue with Ribbentropp. Serrano’s answer was that he had dealt with the subject in passing for somebody had commented on it on the outward journey, and the Nazis had told him that they were not Spaniards but people who had fought against them in France: at 17. See David Wingeate Pike, Españoles en el Holocausto: Vida y muerte de los republicanos en Mauthausen (Barcelona: Mondadori, 2003), 42, quoting a letter by a Nazi official explaining that the Spanish government refused to repatriate the Red Spaniards already in 1940 (such reference is not in the original English version of this work, above n 6).

(77) Wingeate Pike, above n 6, 10. Wingeate Pike suggests that the decision to impose the blue triangle on the Spaniards in Mauthausen was taken on the basis that Spain was not at war with Germany, Spanish prisoners did not have a passport and their status was stateless, as well as to thwart their fight against the Nazis (at 11). Instead, Bernadac describes the decision both as a joke and a big strategic mistake by the administration of the camp (Christian Bernadac, Les 186 marches (Geneva: Famot, 1976), 71–2).

(78) Daniel Díaz Esculies, Entre filferrades: Un aspecte de l’emigració republicana dels Països Catalans (1939–1945) (Barcelona: Edicions de la Magrana, 1993), 193–6. A facsimile of the notes is available at Rosa Toran, Vida i mort dels republicans als camps nazis (Barcelona: Proa, 2002), 299–303.

(79) Letter from Wade M. Fleischer, Chief, International Affaire Branch, to Judge Advocate, 22 August 1947.

(80) Memorandum for Colonel Harbaugh, Inquiry from Secretary General, OMGUS, Concerning the Case of Indalecio Gonzalez, 1 November 1948, [3]‌.

(81) Altfuldisch Review, above n 18, 1.

(82) Navas Review, above n 28, 1.

(83) See above n 29.

(84) See Wingeate Pike, above n 6, 12.

(85) Convention Relating to the International Status of Refugees, signed 28 October 1933, 159 LNTS 199.

(86) Quoted in Comment, ‘In re Galvez’, Revue Critique de Droit International Privé, 36 (1947), 301.

(87) They were not provided with the Nansen passport for they were not considered to have lost the Spanish nationality (Estatuto jurídico de los refugiados españoles (Paris: Imprenta Española, 1945), 5–6).

(88) Estatuto jurídico de los refugiados españoles, above n 87, 18.