"Non-Germans" Under the Third Reich (30 page)

4. The Position under Constitutional Law of the Jews with German State Subject Status Living Abroad: The Eleventh Decree to the Reich Citizenship Law, November 25, 1941

The status of the Jews possessing German state subject status, as noted, had occupied the Reich Ministry of the Interior for years. Beginning in 1940, efforts were undertaken not only to exclude Jews from future acquisition of German state subject status but also—the better to gain access to their property—to revoke the status of those who already were German citizens. Whereas the prohibition on future acquisition of German state subject status by Jews could not be put into effect until 1943, together with a collection of other regulations,
⁶¹
the revocation of German state subject status was achieved in relatively short order.

The original intent of the Reich Ministry of the Interior had been to issue a decree to the Reich Citizenship Law that would make stateless all Jews of German state subject status living abroad and would degrade German Jews (
Inlandsjuden
) to protected status. The purpose was to avoid placing the Jews in a better position than “racially related non-Germans” (who were initially declared stateless and were later supposed to receive no more than conditional state subject status).
⁶²
The Reich Chancellery opposed this on formal grounds, taking the position that of all persons, Jews should not have protected status in the Reich. The chancellery advanced the suggestion, backed by the corresponding Führer decision, that forfeiture of German state subject status take place only upon forfeiture of inland residence.
⁶³

This suggestion carried the day. The new bill for a Decree regarding the Property of Jews Living Abroad Who Forfeit German State Subject Status,
⁶⁴
a draft of which was presented by the Ministerial Council for the Defense of the Reich at a meeting of state secretaries on January 15, 1941,
⁶⁵
provided for the forfeiture of state subject status upon transfer of residence abroad, as well as the forfeiture of all assets to the coffers of the Reich. With only minor alterations, this later became the basis for the Eleventh Decree to the Reich Citizenship Law.

Notwithstanding this, the Reich Ministry of the Interior initially maintained misgivings about the draft, which instituted the “outwardly visible segregation of the Jews from the German body politic.” Withdrawal of state subject status only upon departing the Reich seemed inopportune; the Reich Ministry of the Interior would have much preferred an earlier revocation,
⁶⁶
for, as State Secretary Hans Pfundtner confided to the Reich Chancellery, the Reich Ministry of the Interior wished to skirt the touchy problem of domestic policy involved in permitting, in full view of the public, the deportation and dispossession of German state subjects.
⁶⁷
If, however, the Jews had already become stateless at home, they would have been subject to the laws on immigration (e.g., the provisions for deportation under the Police Decree on Foreigners of August 22, 1938),
⁶⁸
thus giving the police sole responsibility and sparing the general administration any involvement with all the irksome measures of resettlement or evacuation. Confiscation of property, too, in the eyes of the Reich Ministry of the Interior, would have been simpler if the Jews were considered stateless, since in that case it would no longer be necessary to furnish proof of “behavior detrimental to the Reich” as defined under the Law on the Revocation of Naturalization and the Deprivation of German Citizenship of July 14, 1933; seizure could then have been managed under the Law on the Seizure of Assets of Enemies of the People and State, also issued on July 14, 1933, by the expedient of treating Jewish assets, either singly or in general, as “property belonging to enemies of
Volk
and state.”
⁶⁹
But because the Reich Chancellery continued to regard the withdrawal of state subject status from German Jews as “unfortunate” and no agreement was reached with the Reich Ministry of the Interior,
⁷⁰
a new “Führer decision” was issued that supported the position of the Reich Chancellery.
⁷¹

The bill of the Reich minister of the interior, published on November 25, 1941, with appropriate amendments and thereupon approved by all departments as the Eleventh Decree to the Reich Citizenship Law
⁷²
contained a compromise that more or less did justice to all interests, though with its far-reaching consequences in constitutional, property, and inheritance law it was in no way justifiable even by National Socialist legal standards.

True, all the elements of the decree (expatriation, forfeiture of assets to the Reich, and restrictions on the right of inheritance) were already outlined in previous regulations;
⁷³
nevertheless, these had been tailored to individual cases. Now it was a question of collective measures, for example, the provisions regarding the confiscation and forfeiture of a person’s
entire
fortune, which were inadmissible even under the suspension of constitutional rights brought about by the Reich president’s February 28, 1933, Decree for the Protection of People and State
⁷⁴
—which had, among other things, provided for restrictions on property and confiscation by extralegal means.

Jews whose customary residence was in a foreign country at the time the decree took effect forfeited their German state subject status at that time—not, as in the past, by means of an individual legal act but automatically under the law (sec. 2a).

Even more important was the provision under which Jews who later took up “customary residence” abroad forfeited their German state subject status upon transfer of their place of residence to a foreign country, that is to say, immediately upon crossing the border; they became stateless before ever taking up their new residence. German state subject status was irrevocably forfeited upon crossing the border; it could not be regained by returning to the Reich. However, such forfeiture did not extend to family members.
⁷⁵
In the course of the enactment of this law, the term
place of residence
was completely redefined.
⁷⁶
In the official interpretation of the Reich Ministry of the Interior, it was no longer linked, as was previously customary in citizenship law, to the
voluntarily
established domicile or place of residence;
⁷⁷
rather, it was solely determined by “objective” standards; that is, it also encompassed changes in residence that took place against the will of the persons concerned and thus, as the Reich minister of the interior had desired, all changes in residence resulting from “expulsion” (deportation).
⁷⁸
In order that the forfeiture of German citizenship by Jewish refugees and deportees might take effect with the greatest possible speed, the term
foreign country
, too, was given a broad interpretation, in a departure from the common usage. It included all areas outside the borders of the Reich,
⁷⁹
all territories occupied by Germany, in particular the General Government (which usually was not considered foreign),
⁸⁰
as well as the Reich commissariats Ostland and Ukraine, that is, the very regions that were designated as reception areas for deported Jews. For transparent reasons, even the concentration camp at Auschwitz, although situated on Reich territory, was for this purpose considered to be foreign terrain.
⁸¹
Thus it was that almost all of the extermination sites of the Final Solution, from a “juristic” standpoint, were situated abroad; those liquidated in them were not German state subjects but stateless persons of Jewish descent.

Financial consequences, too, were seamlessly regulated. When a Jew’s state subject status was forfeited, his or her property fell to the Reich;
⁸²
it was to be utilized “to further all purposes arising in connection with the solution of the Jewish question” (sec. 3 of the Eleventh Decree). The Reich assumed financial obligations only in the amount of the sale value of the affected Jews’ goods and titles over which the Reich gained power of disposition; that is, property burdened by excessive debt was not assumed. Ruled out altogether was the assumption of debts “whose discharge by the Reich would violate the sensibilities of the
Volk
” (sec. 5 of the Eleventh Decree) and of legitimate claims for the support of third parties (e.g., family members) by Jews, although “Jewish [persons entitled to support]”
⁸³
could be granted “compensation” (sec. 6 of the Eleventh Decree). All rights to pensions on the part of Jews were canceled; family members entitled to maintenance could, at the discretion of the administration, be granted a subsistence allowance (sec. 10 of the Eleventh Decree). Numerous other restrictions followed for the purpose—as one commentary described this organized state larceny—of “annulling the economic ties [of the Jews] to the Reich.”
⁸⁴
Thus, Jews whose assets fell to the Reich were not allowed to inherit property from German state subjects, for testamentary gifts to such persons was prohibited (sec. 4 of the Eleventh Decree).

Not regulated by the decree was the treatment of Jewish
Mischlinge
and those Jews living in “privileged mixed marriages.” This nonregulation met the desires of the
Reichsführer
-SS/RKF and the Party Chancellery, both of whom pleaded that there be no exceptions,
⁸⁵
whereas the Reich minister of the interior wanted to exempt such persons from forfeiture of German state subject status. The omission of provisions for any exceptions whatsoever in the Eleventh Decree provided the Security Police (Gestapo) with broad discretion in whether these persons were to be treated in the same way as Jews, since the Gestapo alone made the decision whether the “requirements for forfeiture of assets” (that is, for deportation) were fulfilled.
⁸⁶

Collectively, these measures, which closely linked state subject status for Jews to their expulsion and made the forfeiture of such status solely dependent on the outward criterion of compulsory residence, represented a novelty in legal thinking, though they received barely any discussion in the academic literature.
⁸⁷
In essence, the Eleventh Decree, by withdrawing all legal status and denying any basis for survival, effectively dissolved the law governing state subject status. It represented a pseudolegalization of the compulsory concentration in the ghettos of the East and was thus the direct administrative prelude to the Final Solution.
⁸⁸

5. The Constitutional Status of “Non-German” Inhabitants of the Reich and the Occupied Territories: Conditional State Subject Status, Protected Status, and the Consequences (Ethnic Gradation)

Despite efforts on the part of the Reich Ministry of the Interior to bring about a comprehensive revision of the law of state subject status, the question of the position of the remaining “non-German” inhabitants of the Reich and the occupied territories remained unresolved after it was tabled at the request of the Reich Chancellery to allow for prior clarification of the status of German Jews.
⁸⁹
However, the regulation governing the status of Poles in the Annexed Eastern Territories in the decree of the
Reichsführer
-SS (RFSS)/RKF of September 12, 1942,
⁹⁰
put in place a provisional regulation for these persons, who in principle were considered to be stateless;
⁹¹
it was finally sanctioned by the instituting of the German Ethnic Classification List of March 4, 1941.
⁹²
In regard to the status of the other “non-German” inhabitants of the Reich and the territories it had occupied, however, no agreement was reached until 1943.

The Twelfth Decree to the Reich Citizenship Law, dated April 25, 1943,
⁹³
which had been agreed upon in early 1943 among the participating Supreme Reich Agencies,
⁹⁴
created the legal institution known as “conditional state subject status,” which could be acquired either by general statute or by individual award. It could be acquired by “non-German” persons (except for Jews and Gypsies) who were considered from both the political and the racial standpoint to be “capable of Germanization,” that is, who met the criteria for being “of German extraction.” Parallel to this was the creation of the category known as protected status, which encompassed “those inhabitants of the German Reich not belonging to the German
Volk
” (except for Jews and Gypsies) “who are or … hereafter shall be granted protected status by general statute or by ruling in individual cases” (sec. 3). The particulars were regulated by decrees issued simultaneously on conditional state subject status and protected status.
⁹⁵

With the promulgation of the Twelfth Decree to the Reich Citizenship Law and related decrees, the three classes of state subject, the idea for which the Reich Ministry of the Interior had championed since 1938, were finally codified in law: (a) German state subject status, the particulars of which were drawn from the Reich Nationality Law of 1913, (b) conditional German state subject status for “non-Germans capable of Germanization,” and (c) so-called protected status for “non-German” inhabitants of the German Reich who were willing to swear a loyalty oath to the German Reich.
⁹⁶
The intent and purpose of these regulations was to create the constitutional foundations for the future colonial empire of the Greater German Reich.