"Non-Germans" Under the Third Reich (118 page)

The decree of October 2, 1943, also tightened up the type and composition of the summary police courts as compared with the original Acts of Violence Decree. The only courts authorized to prosecute were those of the Security Police (to the exclusion of those of the regular police force), and it was no longer obligatory for their sessions to be conducted by a high-ranking SS chief; they could now be headed by any SS chief from the office of the commander of the Security Police and the SD (sec. 4). The provision concerning the transfer of cases to the special court (sec. 11, par. 3, of the decree of October 31, 1939) was dropped. The immediate execution of judgments was stated explicitly, without any provision concerning the submission of a petition for mercy (so that the police often did not submit cases), whereas under the Acts of Violence Decree, execution was expressly contingent on the governor general’s decision regarding mercy.
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Such heavy-handed implementation of the decree finally brought about a change of mind at the governor general’s office, for the practices of the police presented the administration with an insoluble dilemma. If ever a pardon was granted to the recipient of a death sentence, he was immediately sent to concentration camp, despite the fact that the pardon prescribed a specific period of imprisonment. Governor General Frank, who expressed his strong disapproval of the police executions and deportations in private, considered repealing the “Sabotage Decree” (that is, the decree of October 2, 1943); the head of the judicial administration, Kurt Wille, opposed Frank’s plan on account of the “security situation.
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But apart from expressing his unease to his colleagues, Frank took no steps against the arbitrary police practices,
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and the head of the justice administration also saw no possibility of bringing any influence to bear.
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The evident reluctance of the judicial administration to change the boundless jurisdiction of the summary police courts was probably due to this “security situation.” For police jurisdiction was directed above all against acts committed by actual or alleged members of Polish resistance organizations,
³³
and the judiciary in any case could not claim that those individuals fell within its purview. In the process, however, it cut itself off from major fields of criminal law and acknowledged the political hegemony of the Security Police, just as it bowed to pressure in individual proceedings.
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For in the present circumstances the terms
hostile element
and
member of the resistance
were used to denote not only those who had actually committed an act of resistance but anyone who in the judgment of the police might possibly be expected to commit such an act. Thus, the pretext of opposing the resistance movement opened the floodgates to arbitrary police action. Some examples will illustrate this point.

Following the senseless acts of violence perpetrated during the “battle of production” (
Erzeugungsschlacht
) of summer and fall 1942, the Polish resistance considerably increased its operations in rural areas that had hitherto cooperated with the German authorities. In retaliation, the police courts turned to a well-tried method of political blackmail, that of taking hostages (a method that had also been used by the administration) and shooting them in large numbers.
³⁵
Depending on the opportunity and “need,” a number of “persons suspected of resistance” (“criminals” or “bandits”) were rounded up and first sentenced to death for some offense, initially under the Acts of Violence Decree of October 31, 1939, and later under the Sabotage Decree of October 2, 1943. It was then announced publicly that the condemned prisoners were eligible for mercy but that the granting of mercy depended on the conduct of the population. Should further attacks on Germans or German property occur, the sentences would be executed in a ratio of 1:10, 1:20 or even 1:50, depending on the number and rank of the Germans affected.
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This practice claimed thousands of victims.
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The majority of these executions took place in the city of Warsaw, where between October 1943 and July 1944 alone, on the authority of the decree of October 2, 1943, 2,705 people who had been rounded up on the streets and taken as hostages were publicly shot by the Security Police courts as reprisals against attacks on the occupying power or for alleged violations of the decree. A further 4,000 people were secretly executed on the site of the destroyed Jewish ghetto. In the district of Warsaw, at least 4,000 people were executed on the authority of the said decree alone,
³⁸
a practice surpassed only by the excesses of the SS and police in the Occupied Eastern Territories and the Bialystok district.
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In the Lublin district at least 573 people were shot by “court-martial” between November 1942 and December 1944, in Radom at least 380 between November 1943 and December 1944, in Kraków at least 198 between November 1943 and January 1945, to which the executions of “a certain number” or “several” Poles must be added.
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If originally such police actions were carried out under the guise of punishing actual or alleged acts of resistance, very soon the summary police jurisdiction gave up using a formal pretext for the completely arbitrary terror they exercised against innocent people and every suspected hostile element, whether or not there was the slightest evidence of an act of resistance. For example, secret instructions issued by the commander of the
regular
police force ordered that Jews found outside the walls of the ghetto should be liquidated immediately.
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The day-to-day reports of the gendarmerie include hundreds of such cases with the remark, “proceeded according to current instructions.”
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The main focus of police terror was, however, the so-called political arena. Early on, without any basis in “law,” the police began a campaign to eliminate ethnic opponents through what they called preventive operations, directed particularly at the intelligentsia, who were then liquidated through the summary police courts. Such operations began with the roundups that were to become a regular feature in Warsaw,
⁴³
subsequently spreading elsewhere, as for example the arrests of the university professors of Kraków and Lemberg (L’vov) in November 1939 and fall 1941. The victims were either liquidated on the spot or sent to the concentration camps, where the majority of them perished.
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Neither the authorities of the General Government nor the judicial administration generally made any protests against such operations, except when they provoked too much public notice, as in the case of the Kraków professors, when the governor general intervened personally. Protests on the part of the judiciary in any case had very little clout, for following the establishment of jurisdiction of the summary police courts, it had relinquished any say in the whole enormously expanded field of political offenses and had even supported the broadening of arbitrary police measures by a tightening up of the Acts of Violence Decree as early as spring 1940.
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Nor did the judiciary change its attitude when it came to light that the police had considerably overstepped their already extensive powers from the very start.

The best-known example of an operation against “hostile elements”
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is the infamous “exceptional peacemaking action” (AB operation), which the governor general authorized the commander of the Security Police and SD to carry out on pretext of the “serious security situation.”
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Between the end of May and early July 1940, some 3,500 Polish political and intellectual leaders “suspected of resistance” were summarily tried in Warsaw and subsequently executed by the Security Police in the forest of Palmiry nearby.
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Advantage was taken of this shooting to get rid of a further 3,000 “professional criminals” who were “unnecessarily” filling the prisons, without even the semblance of a summary trial.
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Here, too, the judicial administration raised no objection, since such operations ranked as purely political measures and thus did not fall within its jurisdiction. The illegality of the situation was obvious to all concerned, however. Before the operation, the governor general expressly warned the judicial authorities not to initiate criminal investigations against members of the police and SS in connection with police operations;
⁵⁰
the warning carried no threat of material consequences, and given the known predilection of the governor general for pithy turns of phrase, it made little impression. The warning referred to the misgivings of a number of judges who were “somewhat disquieted about the imminence of the AB operation.”
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The head of the Justice Department responded that he had been unconcerned by the police operation from the outset, since it did not fall within the purview of his activity. For him the problem was less the operation itself than the fact that “the cases had been treated very differently,” and he accepted the governor general’s assurance that although “severe measures” had been necessary, it would now be possible to go back to a “normal situation.”
⁵²
Nonetheless, Frank and his colleagues were not fooled into imagining that the police would relinquish the powers they had usurped and change their ways.

The “normal situation” thus reinstated was that not only did the summary police court procedures continue as before, but the police stepped up their illegal mass arrest operations on the pretext of “preventive actions against suspected resistance elements.” Such operations were no longer even purely politically motivated, for the high mortality of the concentration camps brought about an increasing need to “recruit labor,”
⁵³
for which the General Government was the major source. Thus, in 1943 alone, some 20,000 Poles were indiscriminately herded together by order of Himmler and transferred directly to the concentration camps by way of a “collective preventive custody order.”
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3. Cooperation and Conflict between the Judiciary and the Police in the Criminal Prosecution of “Non-German” Offenders

Regarding such mass deportations of “non-Germans” to the concentration camps, there was even less concern than in the Reich whether or not the victims had been condemned and sentenced for a crime. For in the matter of “state police measures,” and indeed throughout the criminal justice system, the judiciary and the police were working hand in hand to ensure that the police had access to all “non-Germans” remanded in custody, as in the Reich and the Annexed Eastern Territories. In October 1940 all the judicial authorities of the General Government were instructed to inform the commander of the Security Police and the SD of the number and type of all criminal proceedings conducted, the sentence passed, and the names of accused and convicted persons.
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The police were further to be informed whenever a convicted person had served his or her sentence.
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Requirements such as these, which gave the local police headquarters a full picture of judicial activity, went far beyond the standard practice of the Reich. The principal victims of police interventions were the Jews, whose “resettlement” to the extermination camps began in August 1942.

A circular directive dated August 21, 1942, from the Central Department of Justice empowered the judicial authorities to stay proceedings against Jews in pursuance of section 154a, par. 3, of the Code of Criminal Procedure and to refrain from executing a sentence except for the death penalty under section 456a of the Code,
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so as to release Jews committed to criminal or executory proceedings for deportation to the camps. In order to include Jews who had already been “resettled,” a further directive was issued on October 7, 1942, to the effect that criminal proceedings or execution of the sentence should be suspended in such cases. The Polish judiciary was also to dispense with a record of proceedings concerning resettled Jews, since in view of the present circumstances and the heavy workload of the police authorities, “determination of the new place of residence of a resettled individual” would give rise to “insurmountable difficulties.”
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These directives clearly indicate the contribution of the justice authorities to their present insignificant and weak position vis-à-vis the power of the police. Far too late, the governor general and his officials discovered the extent to which they had set the seal on illegal practices. Only in 1944 did the governor general insist that the judiciary assert itself more actively against police detention practices.
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By that time there was no hope for anything other than a makeshift solution. Regarding people who had been convicted by the police courts and subsequently granted a pardon so that they could be transferred to a concentration camp after their release, the governor general appealed only for a transmutation to a prison sentence, in a bid to preserve at least the executory prerogative of the courts.
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But police arbitrariness continued unabated.