"Non-Germans" Under the Third Reich (105 page)

In these actions, most of which took place in public with forced attendance by the entire Polish population,
⁴⁷
the hostages were either singled out from lists carefully drawn up by the police (blacklists)
⁴⁸
or picked at random from the population of the community where the crime was committed (“from the environment of the criminal”).
⁴⁹

In addition, of course, the Gestapo made the widest possible use of illegal police “protective custody” or “preventive detention” to punish crimes by “non-Germans.”
⁵⁰

The reaction of the judicial authorities to this flagrant breach of jurisdiction in criminal matters is not known. Even if they were not informed officially of the operations, they often had no objection in principle to the actions of the police, because such atonement and retaliatory actions were regarded as political measures instituted by the police within the context of “fighting the enemy” or the “ethnic struggle,” with which the judiciary had nothing to do. However, the illegality of such measures must have been clear to any knowledgeable individual, since the authorities undertook everything possible to conceal the outcome of the activities or prevent them from finding their way into the records.
⁵¹
But there were also authorities that actively supported these murderous activities.

The chief public prosecutor in Posen (Pozna
), for instance, who welcomed “all ruthless … and severe action against Poles in his area of responsibility” and did not see the “interests of justice affected by such measures,” regarded the deterrent quota stipulated by Hitler—twenty Poles to be shot for each act of violence by Poles—as “suitable” and stated his willingness to help by proposing that the judicial authorities be included in the selection of “suitable Poles.” His thoughts turned in particular to the “professional criminals sitting in prison”; “irrespective of whether these were convicts or remand prisoners,” he could provide them or male members of the environment of the criminal for execution as soon as the execution had been approved by the Führer or the
Reichsführer
-SS and chief of the German police; he believed that “non-delivery [of the prisoners, etc.] would mean that fewer less incriminated persons would be shot, whereas the criminals would only be spared.”
⁵²
“In principle,” the ministry had no objections to this proposal, but it reserved the right to consent to the delivery in each individual case.
⁵³

The political leadership at the head of the administration of the Annexed Eastern Territories was thoroughly aware that the circumstances resulting from the activities of the police were untenable, and it tried to redress the situation in its own way. In conjunction with the “retaliatory action” he ordered in May 1941,
⁵⁴
for instance, the Gauleiter and
Reichsstatthalter
of the Warthegau (Greiser) immediately requested from Hitler the authority to deploy courts-martial, “as he did not possess the inherent legal basis for this” (i.e., for such instructions).
⁵⁵
The proceedings of these courts-martial deployed by the
Reichsstatthalter
were intended to give the appearance of courtlike proceedings, with the
Reichsstatthalter
acting as the “appellate authority” with oral powers of intervention.

How many courts-martial were established in this way and the scope of their activities is, however, a matter of doubt; it is clear that the judicial authorities were still able to exercise a restraining effect at that time. The chief public prosecutor in Posen, for instance, was able to insist that he had to be approached
before
courts-martial were established. The problem was not seen as one of principle. In line with the practice of settling organizational and procedural questions in criminal cases against “non-German” criminals by “agreements” between the administration (the police) and the judicial authorities, rather than by means of existing regulations,
⁵⁶
it was a question of “expediency.” The chief public prosecutor reported to the minister of justice that courts-martial should always be established if the judicial authorities were “overburdened.” In the Warthegau, corresponding “agreements” existed at a relatively high level between the senior public prosecutors and the presidents of the administrative districts.
⁵⁷

3. Developments Following the Coming into Force of the Decree on Penal Law for Poles

The efforts of the police to continue the jurisdiction of the police courts-martial were unable to meet with any definitive success as long as German penal law applied in the Annexed Eastern Territories and the sentencing of Jews and Poles lay exclusively in the hands of the judicial authorities. It was therefore a logical step for the police, in pursuing their final goal, to apply heavy pressure on the Ministry of Justice to reverse the implementation of German penal law and introduce overt police special law for Poles and Jews. We have already seen that in the more than eighteen months of dispute between the Ministry of Justice and the Reich Security Main Office (RSHA),
⁵⁸
the police were able to assert themselves in this matter to a very large extent, since their wishes were largely included in the Decree on Penal Law for Poles of December 4, 1941.
⁵⁹
However, the major goal of also acquiring jurisdiction over offenses by “non-Germans” was achieved only in part, because any statutory incorporation of the jurisdiction of the police courts-martial was defeated not by the weak Ministry of Justice but rather by the resistance of the
Reichsstatthalter
in the Eastern Territories, who rightly feared that the
Reichsführer
-SS and chief of the German police or the head of the Security Police could “gain control over another area.”
⁶⁰

So what the judicial authorities viewed as an absolute defeat was regarded by the police as no more than a partial victory; it was more than a “flaw” that the Decree on Penal Law for Poles adhered to the fundamental jurisdiction of the general courts (special courts and courts of first instance) and had transferred the power to reestablish police courts-martial not to the police but to the
Reichsstatthalter
(and only with the consent of the minister of the interior and the minister of justice, and then only for certain types of cases—“serious outrages against Germans” and “crimes posing a serious threat to German development work”). A new feature in the corresponding clause 13 of the Decree on Penal Law for Poles, which the Ministry of Justice had been forced to accept under pressure from the head of the Security Police and the Security Service,
⁶¹
was that, for the first time, committal to a concentration camp (transfer to the Gestapo) was legally recognized as a punishment or substitute punishment; paragraph 2 of this clause stated that “the punishment to be imposed by the courts-martial is the death penalty. The courts-martial may also refrain from imposing a punishment, ordering transfer to the Secret State Police as an alternative.”

Even this very far-reaching substantive empowerment of the police courts-martial was not sufficient to satisfy the police leadership, because—as Himmler informed Bormann on July 8, 1943—the application of even the most diluted penal “regulations” to “non-Germans” was “thoroughly out of place.”
⁶²
It should therefore come as no surprise that legal developments in the Annexed Eastern Territories after the Decree on Penal Law for Poles had become effective were characterized by increasing efforts by the SS and the police to monopolize the criminal prosecution of Poles and Jews. Often with the active support of the local Gauleiters, the police used a number of methods. On the one hand, they intensified their previous illegal practices, and on the other, they undermined the already far-reaching umbrella clauses in the Decree on Penal Law for Poles.

a. Continuation of Illegal Police Practices

The widespread impact of the “proven” practice of not handing over investigations to the public prosecutors, in defiance of section 163, paragraph 2, of the Code of Criminal Procedure,
⁶³
but rather keeping them in the hands of the police, was of particular importance. In other words, the local heads of the Gestapo decided on a case-by-case basis what was to be handed over to the judicial authorities.
⁶⁴
It is clear that the judicial authorities were therefore excluded from all important cases, in particular those involving “political” criminal matters. For especially significant cases, there were also special instructions to the subordinate departments reinforcing this principle still further.
⁶⁵
It was reported from East Prussia, for instance, that the gendarmerie had been instructed to report all crimes committed by Poles
first
to the Gestapo, so that only a very few criminal cases involving Poles ever came before the courts.
⁶⁶
In particular, all kinds of sexual offenses, viewed as being of equal importance to political crimes, were handled exclusively by the Gestapo on the basis of a corresponding decree by the
Reichsführer
-SS and chief of the German police of March 11, 1942.
⁶⁷
In addition, the SA took it upon itself to sabotage the judicial authorities’ investigations of crimes committed by Poles, as was reported from Bromberg (Bydgoszcz).
⁶⁸
Moreover, the illegal executions by the police, primarily “retaliatory” actions but partly also sanctions for “normal” crimes, did not come to an end with the implementation of the Decree on Penal Law for Poles.
⁶⁹
From this point on, the police acted with increasing openness and self-assurance, supported in the Warthegau by the
Reichsstatthalter
himself, who threatened sentencing by the courts-martial in the event of “further insubordinate behavior” by the Poles (with regard to the regulations governing compulsory labor).
⁷⁰

In the eyes of the police, however, these actions were more or less sporadic isolated acts that were by no means sufficient to achieve control over the entire administration of penal justice for “non-Germans”; although the executions continued, the situation was regarded as unsatisfactory, since a major occasion or serious resistance by the “non-Germans” (attacks on Germans, etc.) was always needed to be able to carry out “deterrent” or “retaliatory measures.”

b. Legalization of the Jurisdiction of the Police Courts-Martial

This all changed with the establishment of police courts-martial in the Annexed Eastern Territories in 1942 when the
Reichsstatthalter
made use of their authority vested in clause 13 of the Decree on Penal Law for Poles. Although the situation report by the chief public prosecutor in Kattowitz (Katowice) of August 6, 1942, notes that the
Reichsstatthalter
of Danzig–West Prussia and the Warthegau opposed the “reestablishment of police courts-martial” in a meeting at the Ministry of Justice on July 28, 1942,
⁷¹
this probably served only to allay the fears of the ministry with regard to further curtailment of the jurisdiction of the courts, rather than to reveal the true intentions of Hitler’s “
Gau
kings.” The temptation to develop “police justice,” controlled only by themselves and independent of the Reich, was simply too great.

As early as August 3 1942,
⁷²
the Decree on the Establishment of Courts-Martial was promulgated for the
Reichsgau
Warthegau, which transferred the sentencing of “serious acts of violence by Poles and Jews against Germans” and other crimes by Poles and Jews (sec. 1) seriously threatening “German development work” to the courts-martial established at the local Gestapo offices and headquarters, under the chairmanship of the local head of the Gestapo office or headquarters.

These crimes were not defined in any greater detail. In cases of doubt, the
Reichsstatthalter
decided whether a crime within the meaning of section 1 was involved. At any rate, the procedure was defined in greater detail than in the Decree on Penal Law for Poles, insofar as the principle of official investigation and the examination of the accused had to be observed. The judgments of the courts-martial were the death penalty, transferal to the Gestapo (concentration camp), or acquittal; the courts-martial could also refrain from a punishment or pass the case on to another court (sec. 2). The
Reichsstatthalter
reserved the right to confirm or reverse the judgments of the courts-martial (clause 3), but this was
delegated
in a decree of August 3, 1942, to the inspector of the Security Police and the Security Service in Posen and thus to the local police leadership.
⁷³
In this way the entire jurisdiction of the courts-martial was concentrated in the hands of the Security Police.