Journal of International Criminal Justice Advance Access originally published online on May 26, 2005
Journal of International Criminal Justice 2005 3(3):649-665; doi:10.1093/jicj/mqi042
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Negotiating Nolle Prosequi at Nuremberg
The Case of Captain Zimmer
* Professor of Law, Law School, University of Central Lancashire, UK; MSalter1{at}aol.com. ** Lecturer in law, Edge Hill College, UK; MEASTWOODM{at}aol.com.
It is well known that plea bargaining as such was not provided for by the Nuremberg Charter, nor is there any instance of plea bargaining in the trials conducted by the occupation tribunals under Control Council Law no. 10. However, as shown in this paper, in connection with war crimes committed in the Second World War, there were negotiations between the Allies and persons who could have potentially been charged with war crimes. The case of Captain Guido Zimmer is exemplary in this respect. He could have been accused of war crimes and tried by a competent tribunal: instead, since he cooperated with the Allies (in particular with US intelligence), the decision not to prosecute him was taken.
1 See R. Bennett, ‘Allen Dulles’, in R. Bennet (ed.), Espionage: An Encyclopedia of Spies and Secrets (London: Virgin Books, 2002), at 75–76.
2 See R. Breitman, ‘Analysis of the Name File of Guido Zimmer’, Record Group 263: Records of the Central Intelligence Agency, Records of the Directorate of Operations, available online at http://www.archives.gov/iwg/declassified__records/oss__records__263__detailed__report__guido__zimmer.html (visited January 2005). The name file is available from US National Archives (NA) Modern Military II, College Park, Washington DC, USA, Record Group (RG) 263 — hereafter cited as ZNF.
3 Dulles's controversial role with respect to legal immunities for the SS General Wolff group is discussed polemically in C. Simpson, The Splendid Blond Beast: Money, Law and Genocide in the Twentieth Century (Maine Monroe: Common Courage Press, 1995) at 13, 199, 201–205 and 236–242, and the highly polemical Aarons and Loftus, The Secret War Against the Jews (New York: St Martin's Press, 1994), at 71–80; B. Hersh, The Old Boys: The American Elite and the Origins of the CIA (New York: Charles Shribner's Sons, 1992), at 125–133.
4 There are possible analogies here with ex-Serbian President Plav
i
's relationship to Miloevi.
6 Ibid., Interrogation report on Egon Schoenpflug, XX 8386, 19 June 1945. Some of the information on Zimmer only emerged during the months immediately after the end of WW2 following active investigations and interrogation of Zimmer's SS colleagues and associates. Zimmer had joined the Nazi Party in 1932, graduating to membership of the SS's Foreign Intelligence Branch (SD) in 1936. He was assigned to Rome in 1940 but recalled to Berlin temporarily, following an intelligence blunder.
7 Zimmer used journalistic cover in Rome, certainly from July 1941 to his recall to Berlin in October 1941. See ZNF, ‘File traces on Zimmer’, Zipper Desk (nd), #12 interrogation report of Rosa Cappelli [Zimmer's maid], 3 September 1945 (sanitized copy).
8 R. Katz, Death in Rome (London: NEL, 1974).
9 ZNF, ‘File traces on Zimmer’, Zipper Desk (nd), #14, 10 September 1945.
10 The SD carried out part of the SS's role in internal surveillance and repression.
11 ZNF, cable LWX-010-926, 26 September 1945, SCI Weekly Operations Report.
12 Abt VI was located within the German regional HQ in 39 Via Corvo Milan, headed by Captain Haug. ZNF, ‘File traces on Zimmer’, Zipper Desk (nd), #11 report from Miodrag Yevremovi, 29 August 1945 (sanitized copy).
13 ZNF, ‘File traces on Zimmer’, Zipper Desk (nd), #13 extract from ‘Guido Zimmer’, JZX-4039, 11 September 1945, BBS to DHZ.
14 ZNF, James Angelton, CO SCI/Z Units Italy, ‘The Case of Guido Zimmer, SS Feldpost No. 02059’, JFX-4039 (nd).
15 For statements on such persecution, see ibid. ‘The Zimmer Notebooks,’ BBS to JJS, JRX-3746, 28 June 1946, ref no. 57, note 4; 130, note 2; 137, note 2.
16 This reported that Zimmer's political intelligence and espionage role meant that his work ‘had little connection with the other [SS] sections in Milan’. ZNF, ‘File traces on Zimmer’, Zipper Desk, (nd), #3 (this extract from May 1945) (sanitized copy).
17 ZNF, James Angelton, CO SCI/Z Units Italy, ‘The Case of Guido Zimmer, SS Feldpost No. 02059’, JFX-4039 (nd); also summarized in ‘File traces on Zimmer’, Zipper Desk (nd), #13.
18 Ibid. In addition, and perhaps as a prelude to the Sunrise deal, Zimmer had few scruples regarding playing on both sides of the street in that he courted Italian partisans involved in the anti-fascist resistance. For example, he had intervened to save a partisan leader, Col. Minetti of the Gruppe D’Annunzio, from death.
19 ZNF, James Angelton, CO SCI/Z Units Italy, ‘The Case of Guido Zimmer, SS Feldpost No. 02059’, JFX-4039 (nd).
20 PRO (London), WO 310/123, telegram, 21.4.1946. We should remember that Dulles was not a military commander, and that he enjoyed no power over the US army's Counter Intelligence Corps, which was the primary group responsible for seeking Nazi war criminals.
21 Berne to Caserta Telegram 9717, May 2, 1945 US National Archives, Entry 134, Box 232.
22 On Zimmer's role in Sunrise, see F. W. Deakin, The Brutal Friendship (New York: Harper and Row, 1962), at 767 and 770.
23 ZNF, James Angelton, CO SCI/Z Units Italy, ‘The Case of Guido Zimmer, SS Feldpost No. 02059’, JFX-4039, Appendix A (nd).
26 ‘Re Guido Zimmer. Before [his] return USA. 110 [OSS codename for Dulles] asked us to assist return to Rome [of] subject and [Zimmer's] family ... with Cap’t George Shiever, Rome. Zimmer sure aid contacts [in] Rome [who will] enable him subsist without help if you do not wish to interrogate or put to work’, ZNF, Amzo 3416, archives 32339, 4 February 1946.
27 ZNF, OSS Germany, ‘Guido Zimmer’, LWX-002–820 (X-3208), 20 September 1945.
28 Husmann to Joeseph McNarney, 15 January 1946: I.F.Z. [Historical Institute] Munich, AG 45/92/6, File Husmann.
29 See Dulles to Major Lewis, 30 September 1945: US National Archives (NA), RG.226, E.190C, B.8: Dulles Files-Sunrise letters re: Wolff-Zimmer.
30 These are deposited in Cornell Law School and, unlike the documentation stored in the US National Archives, Modern Military II, in Washington DC, are still ‘unweeded’ by the CIA. On Donovan generally, see Bennett, supra note 1, at 70 and (with respect his role at Nuremberg) R. Dunlop, Donovan: America's Master Spy (New York: Rand McNally & Co, 1982), at 479–480.
31 ‘Guido Zimmer, a member of the SS played an outstanding part in the secret operations, which resulted in the unconditional surrender of the German Armies in Northern Italy. It was he who, early in 1945, set the ball rolling by entering into secret discussions with the Italian Baron Parrilli, for the purpose of establishing the first contact with Allied representatives in Switzerland. During the course of the negotiations, Zimmer proved to be of extreme usefulness. During Several weeks he sheltered a clandestine Allied radio operator in his house in Milan. He undertook this operation at great risk to himself. At the same time he frequently travelled between Milan and the Swiss border, and often crossed the border into Switzerland to maintain contact with Allied representatives. There can be no doubt that Guido Zimmer was of outstanding help in bringing about his surrender of the German Armies in Northern Italy. In doing so he contributed materially to hastening the end of the war and saving the lives of many Allied soldiers’, Memorandum, Gaevernitz to Donovan, 20 November 1945: Donovan Archive, Vol. 6, subdivision 11.
32 Betts was Judge Advocate General for the European theatre, and therefore in overall charge of all war crimes trials other than the international trials taking place at Nuremberg.
33 Memorandum Donovan to General Betts, 23 November 1945: Donovan Archive, Vol. 17, Part 3, 53.07.
34 ZNF, Amzo 5107 archives 3328, 25 February 1946.
35 Eugen Dollmann and Karl Wolff (and assisted by the supposedly neutral Italian intermediary, Baron Parrilli).
36 P. Grose, The Life of Allen Dulles (New York: Houghton Mifflin, 1994), at 243.
37 For Dulles's own questionable views on Zimmer ‘Chief of counter-espionage in the SS intelligence office of Genoa’, ‘a devout Catholic’ and his role as ‘the aesthetic captain who had always cut an unlikely figure in SS uniform ... a misfit in the SS’, see A. W. Dulles, The Secret Surrender (New York: Harper and Row, 1966), at 252, 71–76, 82–84, 152–163, 179–183, 198–99 and 213.
38 See K. Ruffner, ‘A Persistent Emotional Issue: CIA's Support to the Nazi War Criminal Investigations’, 1 Studies in Intelligence (1997), available online at http://www.cia.gov/csi/studies/97unclas/naziwar.html (visited January 2005); I. Bryan and M. Salter, ‘War Crimes Prosecutor and Intelligence agencies: The Case for Assessing their Collaboration’, 16 Intelligence and National Security, at 93–120; M. Salter, ‘The prosecution of Nazi War criminals and the OSS: The Need For a New Research Agenda’, 2 Journal of Intelligence History (2002) 77–119.
39 Grose, supra note 36, at 256 (Ch. 11).
41 See ‘Report on a conversation between Critic, 110 and 476, who was later joined by G’, 19 March 1945, 
3: NA, RG.226, E.110, B.2, F.16. See the report from ‘Dulles Files’, at 13: RG.226, E.190C, B. 8; Untitled Sunrise folder compiled by T.S. Ryan, ‘Narrative on Sunrise’, at 34: RG.226, E.110, B.711, F.11a.
42 As Cold War tensions escalated, Anglo-American intelligence developed a growing interest in recruiting networks of European agents, with right-wing, anti-communist credentials such as former Nazi intelligence officials, who were capable of providing, directly or otherwise, information on Soviet-controlled Eastern Europe, especially the Russian Zone of Germany. See Bennett, supra note 1, at 76.
43 ZNF, Interrogation Report on Giacomello, Rome X2-pts-63, No.323, 6 March 1945.
44 See ZNF, re: Your X-3377: OSS BBS to OSS Washington, 28 November 1945, JZX-5519.
45 This included memorandum with higher-ranking SS officials, such as Max Schellenberg and Parrilli.
46 ZNF, Guido Zimmer, re: Your X-3377: OSS BBS to OSS Washington, 28 November 1945, JZX-5519.
47 ZNF, ‘The Zimmer Notebooks’, BBS to JJS, JRX-3746, 28 June 1946, #6.
48 Ibid., ##7 and 8, and 14, fn. 3 (re: Dulles's agent Enrico Maroni).
49 ZNF, cable LWX-010–926, 26 September 1945, SCI Weekly Operations Report.
50 ZNF, Felicita Staurant, partly illegible, internal OSS cable, 12 September 1945.
51 Grose, supra note 36, at 253. Dulles's own account states that ‘Zimmer ... was cleared of charges quite early in the day’, ibid., at 253.
52 ZNF, cable LWX-010–926, 26 September 1945, SCI Weekly Operations Report.
53 ZNF, LWX 010–915a, 8 October 1945, ‘Two Semi-Monthly reports covering period stated (15 Aug.–15 Sep’t)’: source Cap’t Scivener. This report is summarized in an untitled OSS/SSU document summarizing various cables relating to Zimmer, possibly a continuation and update of OSS Germany, ‘Guido Zimmer’, LWX-002–820 (X-3208), September 1945.
55 In March–April 1945, Dulles was the lead OSS negotiator in Operation Sunrise.
56 ZNF, OSS Germany, ‘Guido Zimmer’, LWX-002–820 (X-3208), 20 September 1945, summarizing a cable sent by OSS Washington.
57 Grose, supra note 36, at 243.
58 ZNF, ‘Guido Zimmer, re: Your X-3377’: OSS BBS to OSS Washington, 28 November 1945, JZX-5519.
61 ZNF, ‘The Zimmer Notebooks’, BBS to JJS, JRX-3746, 28 June 1946, ref no.79, note 4.
62 ZNF, OSS Germany, ‘Guido Zimmer’, LWX-002–820 (X-3208), 20 September 1945, summarizing a cable sent by OSS Washington.
63 ZNF, Amzo 2167, archives 33190, 2 February 1946; also summarized in ‘File traces on Zimmer’, Zipper Desk (nd), #15 extract.
64 ZNF, Amzo 5107 archives 3328, 25 February 1946.
65 ZNF, Memo to SSU AB ... JRX 11 ... [partly illegible], 10 April 1946 (declassified only in a sanitized form).
66 ZNF, Edward Green, Deputy Chief SSU Germany, to SSU operations att’n Mr Gilpatric, 12 April 1946.
68 ZNF, Saint BBS to Saint DNI: Guido Zimmer, CO, Abt. VI, ANO Milan, 11 September 1945.
69 ZNF, Zimmer, Stelden to Mr Horton, 3 April 1946.
70 ZNF, Amzo 5107 archives 3328, 25 February 1946.
71 ZNF, Amzo 3416, archives 32339, 4 February 1946.
72 ZNF, Cable Berne 388 to, presumably, SSU Washington, 9 April 1946, archive in 35548.