"Non-Germans" Under the Third Reich (104 page)

Therefore, the Party and the police, who had never accepted the introduction of German penal law by the decree of June 6, 1940,
⁶
believed that a few umbrella clauses, which should cover “
all irregular conduct if at all possible
,” that is, not merely criminal offenses by “non-Germans,” plus a vaguely worded code of procedure allowing a “quick and effective trial,” would suffice for Poles and Jews.
⁷
As Bormann continued to the head of the Reich Chancellery, “the regulations created in 1870 to protect the accused or the defendant, which have still not been eliminated today [meaning the Reich Code of Criminal Procedure] should be abandoned as far as possible.”
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Punishments “must be governed clearly by the criteria of intimidation and the political goals applying to the Eastern Territories,” whereby the “imperviousness of the Poles to prison sentences” should be taken into account. As punishments for Poles and Jews, the NSDAP demanded not only the death sentence but also the formal introduction of corporal punishment, already firmly established as a custom, as well as “other measures with, perhaps, more of a police-like character,” meaning certainly the imposition of protective custody, that is, committal to a concentration camp or a “work training camp.”
⁹
These endeavors were largely realized in the Decree on Penal Law for Poles of December 4, 1941.

2. Developments before the Coming into Force of the Decree on Penal Law for Poles: Arbitrary Acts and Police Court-Martial Jurisdiction

However, the police did not act in accordance with these principles of an exclusively police jurisdiction only after the effective date of the Decree on Penal Law for Poles. Corresponding to their practice of plunging single-mindedly into legal vacuums or regarding existing regulations as nonexistent, the SS and police were able to do as they pleased in the Annexed Eastern Territories right from the outset, in the same way as they were to do later in other parts of occupied Eastern Europe. The expansion of police power was made considerably easier by the convoluted legal situation described above, especially in the first phase of the legal vacuum when the German civil administration had to be built up at considerable effort. However, the arbitrary measures of the SS and the police, which raged from fall 1939 until spring 1940, had nothing to do at first with “criminal prosecution” in the sense meant by the police at the time.

The acts of “unbridled terror,”
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characterized by innumerable “blind programs of action” (such as the mass seizures and deportations),
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but above all by the arbitrary justice of the SS and the police, the special-duty detachments of the Security Police,
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and the local self-defense groups,
¹³
consisted not only of raging “spontaneous” actions. To a much larger extent they involved well-planned (blacklist) executions (frequently in public to serve as intimidation) of hostages and politically undesirable individuals, to which some ten thousand Poles and Jews fell victim, not including the victims in camps and prisons.
¹⁴
With the effective cooperation of the judicial leadership, ways were found to conceal these murders (e.g., dispensing with the statutory requirement of official publication of notices in daily newspapers for the purpose of announcing the death of “missing” persons).
¹⁵

The first “courtlike” institutions of the police (all they had in common with the concept of a court was their name) appeared in the courts-martial of the Security Police, which came into action as soon as “scheduled” and selective executions took place that did not represent individual acts of terror or revenge. Their first appearance was in the form of “mobile” courts-martial, which assembled at the headquarters of the relevant task forces of the Security Police or police battalions as required and which themselves decided the form of their proceedings. In line with the policy of practicing the “ethnic struggle” by means of violence, murder, and terror, this procedure scorned all legal concepts, as evidenced by the few remaining sources (there was generally no examination of witnesses; death sentences were passed summarily); only the personal details of the accused and the names of the members of the court-martial were recorded, and the facts of the case and the charges were no more than summarized, if they appeared at all.
¹⁶
Crimes worthy of the death penalty were sometimes no more than alleged “ill repute,” membership in Polish organizations, or simply belonging to the “leading intellectual class.”
¹⁷
These courts-martial, thus, perceived only the concerns of the Security Police, leaving aside any procedural standard, even in a minimal sense; they were nothing but a mere instrument of a random terror, directed mainly against members of the Polish intelligentsia. In addition, they were already at this early stage assuming the function of the courts to deal with “normal” criminal matters, such as property offenses, “utterances” hostile to Germany,
¹⁸
arson, manslaughter,
¹⁹
and so forth, evidence that the police had pursued from the outset the goal of eliminating the judicial authorities completely from the criminal punishment of “non-Germans”;
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at the least, the judicial institutions were subjected to massive pressure—even by the lowest-level police authorities—to obtain judgments convenient to the police.
²¹

Even on the basis of National Socialist legal opinion, there was no regulatory basis for the establishment and activities of these police courts-martial.

In terms of statutory law, there was only the decree by the commander in chief of the army of September 21, 1939, which also assigned the punishment for illegal possession of weapons (for which the courts-martial of the Wehrmacht had originally been responsible) to the police courts-martial (consisting of members of a police battalion or police regiment or of the Gestapo) but had expressly limited their jurisdiction to these matters.
²²
Recourse to the comprehensive powers described above by the courts-martial of the Security Police and the regular police was therefore based not on this decree but rather on the infamous decree of the head of the SIPO and the SD on the Principles of Internal State Security during the War of September 3, 1939,
²³
which in turn derived from a verbal order given by Hitler to the
Reichsführer
-SS and chief of the German police to “preserve security in the territory of the Reich by all means,”
²⁴
which also included “cleansing the territory of the Reich of Jews and Poles.”
²⁵

This decree, under which action was to be taken with “ruthless harshness and severity” against not only “subversive endeavors” but also all criminal offenses, which were to be treated as “sabotage of the solidarity and fighting spirit of the German people,” was obviously now understood by the police leadership to be authorization for mass executions without trial and for the establishment of special courts; this was tolerated and approved of by Hitler, although he notified the Reich judicial administration officially that he had given no general instruction for mass executions but could not dispense with the need for executions in individual instances.
²⁶

The extent to which the courts-martial lacked any formal basis is shown in particular by the fact that although the courts-martial of the police battalions punished “normal” offenses (e.g., theft, receiving stolen goods), the bases cited (wrongly) were the aforementioned decree of September 21, 1939,
²⁷
covering the possession of weapons, and in addition a “special instruction” of the
Reichsführer
-SS and chief of the German police that was not defined in greater detail (it is possible that this decree is identical to the decree of September 3, 1939);
²⁸
the courts-martial of the Gestapo dispensed with such formalities.
²⁹
The legal situation in the Annexed Eastern Territories, already tangled enough due to the lack of formally implemented Reich law, was complicated even further by the fact that along with the Wehrmacht and civil courts, the police courts-martial also claimed court jurisdiction in criminal matters. In practical terms, as Reich Minister of Justice Gürtner lamented as early as September 1939, there was a competing jurisdiction between the People’s Court of Justice, the Wehrmacht courts, the special courts, and the police courts-martial,
³⁰
which only served to exacerbate the jurisdictional chaos even further.

However, even the activities of the SS and the police could not survive in the long term without a formal basis in law; they required a legal gloss, however threadbare this might be. Himmler therefore intended to introduce a Decree on Acts of Violence in the Annexed Eastern Territories, which was to legalize all “actions” by the SS and police, including also those of the courts-martial and of the special-duty detachments of the SIPO and the police battalions, with retroactive effect to September 1, 1939, and which provided for draconian punishments (the death penalty as the standard sentence) for all cases of Polish insubordination. Under the draft,
³¹
all cases in which the offense was directed toward the German police, its members, or auxiliary personnel and in which “immediate sentencing was possible and necessary” were to be tried not only by the special courts and the Wehrmacht courts but also by the police courts-martial; the decree was not to apply to Reich and ethnic Germans or to members of neutral countries. In other words, it was to create special law for “non-German” offenders (in particular Poles and Jews) (“The instruments of power of martial law should be directed with full severity against the enemy”).
³²
This attempt at overtly curtailing the powers of the courts met with criticism not only from the Reich Chancellery and the Ministry of Justice;
³³
the chairman of the Ministerial Council for the Defense of the Reich (Göring), in his capacity as plenipotentiary for the Four Year Plan interested in the quickest possible normalization in the Annexed Eastern Territories, could not warm to the view of the
Reichsführer
-SS that “we cannot yet dispense with the martial-law jurisdiction of the police because normal conditions, similar to those in the Altreich, have yet to be achieved and cannot be expected in the near future,”
³⁴
because he believed that the powers that would thereby be vested in the police would go too far.
³⁵
Himmler therefore had to accept the implementation of Reich penal law in the Annexed Eastern Territories, but he was able to record a certain success because (as stated above), his draft was adopted, practically without change in terms of substantive law, as “special penal regulations” in the Decree on the Implementation of Penal Law of June 6, 1940.
³⁶
In return, Himmler consented to halting the activities of the police courts-martial.
³⁷

However, the decree of June 6, 1940, had no effect on the objectives of the SS and police leadership to obtain full jurisdiction over the Poles and Jews for criminal matters; the police leadership had no intention whatsoever of accepting the legal situation as it stood. This is why the police courts-martial were never formally abolished but merely ceased their activities “until further notice”;
³⁸
this was no more than an attempt to reassure the judicial and administrative authorities.
³⁹
In the Warthegau at least, the courts-martial organization was even reinforced shortly before the implementation of German penal law on June 6, 1940, by the establishment of permanent courts-martial to replace the mobile courts-martial;
⁴⁰
following the previous practice of the mobile courts-martial, these permanent courts-martial claimed comprehensive jurisdiction in criminal matters. Although the court-martial of the regular police was responsible only for punishing illegal possession of weapons under the decree of September 21, 1939,
⁴¹
the Gestapo court-martial was declared to be responsible “for all other cases,” without any further definition.
⁴²
Such cases included, for example, “homicide,” “sabotage,” and “arson,” but they related especially to the “political” crimes (“treason and high treason”) and similar offenses, which fell, of course, under the jurisdiction of the general courts.
⁴³

A further attempt at reversing the existing legal situation related to the other extralegal actions of the SS and police, which had increased since the implementation of German penal law, in particular the shooting or hanging of Jews for a wide variety of crimes; these were not even tried before the courts-martial, because the Jews were, in any case, no more than fair game for the police.
⁴⁴
These were measures against which the judicial authorities could not or would not protest, since they “only” involved Jews. In addition, the (Gestapo) courts-martial or simply the “normal” (regular) police always moved into action when the case involved the performance of “atonement measures,” that is, retaliatory actions for attacks on Germans or damage to German facilities by the execution of hostages or allegedly “suspicious” persons.
⁴⁵
Some of those actions were directed by the local
Reichsstatthalter
; others were ordered directly by the Reichsführer-SS and chief of the German police.
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