Wehrkraftzersetzung

Wehrkraftzersetzung is a term from German military law during the Third Reich. In 1938, with Adolf Hitler moving Germany closer to war, the Nazi government issued a decree for the purpose of suppressing any expression or activity opposed to the Nazi regime or the Wehrmacht. The anti-sedition decree included the crime of Zersetzung der Wehrkraft. Commonly called wehrkraftzersetzung, the term is variously translated as "subversion of the war effort", "undermining military morale" and "sedition and defeatism" Paragraphs already in the military penal code were consolidated and redefined, creating the new crime, which carried the death penalty. In 1939, a second decree was issued that extended the crime to civilians.

Discouraging statements, such as doubt about the ultimate victory of the Third Reich, any criticism of its political or military leadership and its form of government were punished with heavy prison sentences (in military prisons, concentration camps, deployment to the field or to probationary units) or with death. Conscientious objectors in particular were frequently convicted of wehrkraftzersetzung in addition to their other charges. This was done to reduce the potential of negative influence on others, even when the refusal of military duty had not been publicized. Many civilians were also convicted of wehrkraftzersetzung by military courts.

After a lengthy debate, the German Bundestag lifted the Nazi sentences from the criminal justice system on August 25, 1998 and on July 23, 2002, all Nazi-era military sentencing for conscientious objection, desertion and all                         forms of wehrkraftzersetzung were repealed as unjust. Current German military law neither contains the term "undermining the military" nor its extensive rules. However, a few offenses that in the Nazi era, fell under wehrkraftzersetzung, remain on the books in a vague form.

Definition in the Nazi military penal code
The term "undermining military force" (Zersetzung der Wehrkraft) was established in the law by the Wartime Special Penal Code (Kriegssonderstrafrechtsverordnung or KSSVO) on August 17, 1938. It criminalized, particularly within the Wehrmacht's military justice, all criticism, dissent and behavior opposed to the Nazis' political and military leadership. The definition of the term is equivalent to the Treachery Act of 1934 and escalates the crime. Critical remarks by soldiers violating the Treachery Act had previously been punished merely with a prison term, but the KSSVO added the death penalty, allowing a Zuchthaus or prison sentence only in minor cases.

With the introduction of the Wartime Regulations for Criminal Procedures (Kriegsstrafverfahrensordnung or KStVO), those accused under the law were also deprived of the right to appeal, further weakening them at trial. The extent of the military judge's discretion and the degree of arbitrariness involved are indicated in a 1942 statement by Alfred Fikentscher, an admiral and chief medical officer in the Kriegsmarine. Speaking before military lawyers, he said, "...similar circumstances exist with subversive remarks, which may be seen as violations of the Treachery Act. Protracted submission [of documents] to the Minister of Justice to order a criminal prosecution is unnecessary if you approach the statement as undermining the military, which will be possible in almost every case."

The regulations created by the Wehrmacht in the course of preparing for World War II served during the war years as an instrument of terror to maintain the soldiers' "will to persevere" through coercion. Especially in the later stages of the war, the Nazi and Wehrmacht leadership were greatly afraid of 1918-like events during the German Revolution. Every act of resistance was to be suppressed, that a reoccurrence of the stab-in-the-back legend be prevented. At the beginning of 1943, the jurisdiction was transferred to the Nazi People's Court, though minor cases could be sent to the Sondergerichte (special courts that were originally instituted for political crimes but, other than the People's Court, had at this time advanced to be the usual courts against common criminality; not unlike later drumhead courts, they had hunting-down, not due process, as their express purpose). As a rule, the People's Court imposed the death penalty.

§5 of the KSSVO reads:
 * Whoever openly challenges or incites others to refuse to fulfill their duty to serve in the German armed forces or their allies, or otherwise openly tries to self-assertively put up a fight to cripple or subvert the will of the German people or their allies ... will be sentenced to death for undermining the military.

As is clear from the result, the word "openly" provided some unforeseen room for interpretation, so that even remarks made within one's own family could be used by relatives against the accused. The vague wording of the regulation made it possible to criminalize every type of criticism, also by civilians, deliberately encouraging denunciation as a means to more comprehensively control the population. That "undermining the war effort" in the Third Reich was by no means a trivial offense is seen in the November 1, 1944 decree from the head of the National Socialist Secret Service of the Luftwaffe:


 * "It has long been self-evident that whoever expresses doubt about the Führer, criticizes him and his actions, spreads disparaging news or vilifies him, is without honor and worthy of death. Neither standing nor rank, nor personal circumstances or other grounds can exculpate such a case. In the most difficult, deciding period of the war, whoever expresses doubt about the final victory and thereby causes others to waver, has likewise forfeited his life!"

Among others, examples of subversion given were:
 * Remarks in opposition to Nazi ideology
 * Doubt about the legitimacy of the struggle for survival imposed on us [...]
 * Dissemination of news about battle fatigue and German soldiers deserting
 * Doubt about military reports
 * Cultivating private contact with prisoners of war
 * Disparaging that important weapon in war: German propaganda
 * Discussing contingencies in the event of defeat
 * The assertion, that bolshevism "is not so bad or that the democracy of our western neighbors could be contemplated".

Defeatist remarks were not prosecuted under military law, but were tried in "accelerated trials", such as in the case of Norbert Engel, then a massage and physiotherapist. He was sentenced to death after expressing his regret over the failure of the July 20 plot to a nurse. He said, "If it had succeeded, the war would have been over in five days and we'd have been able to go home." Engel escaped execution by fleeing to the Netherlands.

The introduction of the KSSVO marked a new stage in the persecution of the Nazis' political opponents and many thousands of them were killed. According to Wehrmacht criminal statistics, by June 30, 1944, there had been 14,262 convictions for wehrkraftzersetzung, though German military historian Manfred Messerschmidt says the number of convictions was likely to have been closer to 30,000. The number of convictions and proportion of death sentences steadily increased at the end of the war because as the war dragged on, criticism increased. Combat was ever more costly for Germans, while the awaited "final victory" was pushed further and further into the future. Because of the way the regulation was formulated, a conviction generally came from a denunciation by associates, though some convictions came from remarks in letters or slogans written on walls. That there weren't even more regime critics convicted may have had to do with the nature of denunciations. A potential accuser could hardly be certain that during the course of the investigation, he would not also be denounced. The fact that every soldier was informed about the consequences of uttering banned speech may have inhibited the number of denunciations.

Use in the Federal Republic of Germany
In the Federal Republic of Germany, the prosecution of individual crimes, formerly listed under "Subversion of Military Strength", are now regulated under §§ 109-109k of the German criminal code, the similar sounding "Crimes against the Defense of the Country" (Straftaten gegen die Landesverteidigung). Especially noteworthy is § 109d, "Disturbing Propaganda against the Bundeswehr", which places penalties on untruthful remarks that "disturb the operations of the Bundeswehr", as well as § 109 StGB, "Evasion of Military Service Through Mutilation" (Wehrpflichtentziehung durch Verstümmelung). Military conscription in Germany was suspended in 2011 for an indefinite period of time.

People executed under Wehrkraftzersetzung

 * Elli Hatschek
 * Erich Knauf
 * Hans Scholl
 * Sophie Scholl