"Non-Germans" Under the Third Reich (62 page)

This plan therefore involved German rule, not in the sense of the total deportation or Germanization of the Poles but rather in the sense of (colonial) rule by a German “ruling class” over the mass of the “non-Germans,” in the same way that ancient Sparta had ruled over its
perioikoi
and Helots. As expounded by the political leadership, this system of colonial rule, initially developed for the occupied Russian territories,
¹²
also represented the fundamental concept of administrative policy in the General Government.

III. Legal Status: Borderland (
Nebenland
) of the Reich or Part of Reich Territory?

On the basis of the aforementioned intended purpose of the General Government as an object of colonial exploitation, it would have been an obvious move to regulate its legal status conclusively, for instance as a formal colony or “protected territory.” However, the relatively undefined long-term aims for the ultimate fate of the General Government made it difficult, indeed impossible, to define its legal status with the aid of conventional categories.
¹
It therefore remained in legally ambiguous abeyance, a state that totally corresponded to the dislike of the National Socialist leadership for any legal stipulations whatsoever and offered the best conditions for the uninhibited development of the despotism of the National Socialist police and administrative authorities. The status of the General Government is a particularly good example of the minor role played by the legal sphere in National Socialism. Inspired by the revolutionary impetus and enthusiasm for “developing the East,” they started by smashing what already existed, then got on with their own business and left it to the lawyers to find legal forms for the new “facts” that had been created.

But the search for a legal classification of the General Government within the conventional system remained fruitless. In view of the function of the General Government as the booty of the Reich, there was agreement in the leadership—and following it, jurisprudence
²
—only that the standards of international law did not apply to this territory. In the view of the National Socialists, the term “General Government for the occupied Polish territories,” binding until July 12, 1940,
³
did not express any
occupatio bellica
after the end of military administration, a temporary occupation in terms of international law, but the subordination of this territory in perpetuity to German civil administration.
⁴
They believed that with the capitulation of Poland, the Polish state had ceased to exist;
⁵
its defeat should therefore be regarded as
debellatio
(extinction of the state) in terms of international law.
⁶
The disappearance of the Polish state as an object of international law, it was explained in the literature, resulted “principally from the fact that directly after September 1, 1939, no further traces of a system of government from Poland could be established.”
⁷

Even aside from the fact that such “traces” had been destroyed from the outset by the occupying power itself, this ran counter to all reality—the establishment of the Polish government in exile as well as the marshaling of Polish armed forces abroad, and so forth—but still remained the prevailing opinion of the jurisprudence of international law in Germany at the time, as long as the thesis of the collapse of the Polish state was repeated by the political leadership for a sufficiently long period in jurisprudence. The prevalent doctrine was not the slightest bit discomforted by the fact that its claim “that under recognized principles of international law … the German Reich as the victorious state had primarily acquired the right to dispose of the territory of the former Republic of Poland and its inhabitants”
⁸
was in open defiance of general international law, since in fact these “recognized principles” stated exactly the opposite, that “illegal” occupations (e.g., through aggression) did not lead to the extinction of the occupied state—at least not within such a brief period of time.
⁹
Under general international law, the theory of the nonextinction of the occupied state applied even when the occupying state intended to annex the territory of the occupied state, whereas for German jurisprudence it was just this intention of the German leadership (the breaking up of Poland)
¹⁰
that provided the justification for proceeding on the basis of the actual extinction of the Polish state.
¹¹
The fact that the Western Powers had recognized the Polish government in exile in London was declared to be irrelevant by the Reich Chancellery itself,
¹²
since the National Socialist plans for empire did not permit the application of the rules of the international community of nations; as formulated by a representative of the Foreign Office, a mere
occupatio bellica
would have caused the rules of international law on the treatment of the local population to have gained ground, and Germany “unquestionably did not wish to submit to these.”
¹³

The treatment of the occupied Polish territories was thus viewed by the National Socialist leadership as an
internal Reich
matter; with the doctrine of the “basic rights of states,” in particular the right of a state to arm itself and the right of Lebensraum and of empire (
Grossraum
), to which a “leading power” was entitled (C. Schmitt),
¹⁴
National Socialist jurisprudence of international law supplied the corresponding theoretical foundations.
¹⁵
This rejection of the application of international law was already evident during the period of military administration in Poland, when the civil powers subordinate to that administration (heads of the civil administration, Party offices, local self-defense units), but above all the
Einsatzgruppen
of the SS and police, committed countless violations of the law, which, because the
occupatio bellica
under international law was still assumed at the time of the military administration,
¹⁶
were also crimes under international law from the German point of view; however, the rejection of the applicability of any international law was expressed after the end of the military administration, when attempts were made to justify the political decision to incorporate the General Government into the domestic territory of the National Socialist regime with vague formulas such as “affiliation” with the German Reich or the “actual edging closer … of this territory” to the German state community.
¹⁷

The consequence of the rejection of the nature of the General Government as a territory occupied under international law was that the provisions of the Hague Warfare Convention and the Geneva Convention on the Treatment of Prisoners of War
¹⁸
were applied neither in the General Government nor in any other occupied territories in Eastern Europe. The rules of international law, now declared ineffective, primarily consisted of the regulations on the observance of state law, the protection of life and property of the inhabitants, the prohibition on the destruction of works of science and art, and the prohibition on the confiscation of the property of municipalities, churches, and charitable, scientific, and artistic associations (arts. 43, 46, 50, 53, and 56 of the Hague Convention). These provisions were systematically violated from the outset, since in the opinion of the Germans, civil administration in the General Government was exclusively an internal matter of the Reich. The violations of practically every rule of international law in the General Government—the confiscations, expropriations, destruction, and so on—were therefore nothing other than “legal measures of the internal German state powers in domestic German territories or those belonging to the German
Grossraum.
”
¹⁹

The question of the
constitutional
status of this territory subject to a German “claim of leadership” (Freisler), however, was difficult to answer, because the Decree of the Führer and Reich Chancellor on the Administration of the Occupied Polish Territories of October 12, 1939,
²⁰
did not pronounce any formal incorporation. Although even members of the government of the General Government admitted that it was theoretically quite feasible to administer the General Government using the same administrative methods as in the Reich, the National Socialist doctrine of the “graduation in value and ranking of nations and the idea of a special system of rule to dominate the ‘non-German’ population”
²¹
ran counter to any formal incorporation. Treatment as a foreign territory was not possible, however, although the structure of the General Government and the comprehensive powers of the governor general (as well as his external relations) were modeled on the status of a foreign state, or at least that of an autonomous region,
²²
since the General Government was part of the German dominions and thus could not at the same time be foreign territory. But it was also a land with a predominantly “non-German” population, so the only alternative was to create something quite new, something revolutionary. The ambitious aim of the authorities of the governor general was therefore to establish a new administrative and legal system, whose “guiding principles” should be only “the task at hand” and “National Socialist instinct,”
²³
in order—as Reich Minister of Justice Gürtner observed in a speech in Kraków—“to show … for the first time, how we will live … with the non-German peoples.”
²⁴

For the definition of the new form of mastery over “non-Germans,” recourse was made first to the term
affiliation,
which was later used during the organization of the administration. The General Government was regarded as “affiliated” with the Reich, which was supposed to express both the association with the Reich and the autonomy of the affiliated territory. However, because affiliation was never defined precisely, it was of little use. The same applies to the concept of the General Government as a borderland (
Nebenland
) of the Reich, coined by Governor General Frank himself, or to the phrase “outpost of the Reich”
²⁵
used by Hitler. In essence, the concept of the General Government represented new territory that could not be understood using the traditional categories of international law. There was less effort to achieve any legal
concretization
of its status, with commentators confining themselves to emphasizing the “historical task” of the General Government, the “original and unique nature” of its status (using the term
unique form
); the “proud central structure of Greater German life,” the “unique, original creation … of National Socialist state thought,” “a legislative and organizational creation of the first order,” and so forth.
²⁶

Nevertheless, there was agreement that the General Government belonged to the “Greater German sphere of influence” (although the territory had not been annexed)
²⁷
and that it represented the first case of the acknowledgment of “German sovereignty outside the Greater German Reich”;
²⁸
the few authors who made any comments at all on the status of the General Government invented the term
geopolitical thinking
(
“Raumdenken”
) to characterize this classification, which obviously borrowed from the concept of the empire (
Grossraum
).
²⁹
However, it was not clear what this concept of
geopolitical sovereignty
(
“Raumhoheit”
) actually meant and what effect it would have on the conventional form of rule over foreign territories, for which only the term
territorial sovereignty
(
Gebietshoheit
) had previously been used.
³⁰

Consequently, the status of the General Government remained undefined. As was usual in the National Socialist system when no one knew what to do or how new structures should be defined, there was a retreat to negative definitions or vague circumscriptions. Court practice and jurisprudence agreed on what the General Government was
not,
that is, domestic territory; but they also agreed that it belonged to the “perpetual dominion” of the German
Grossraum.
³¹
For “geopolitical thinking in terms of international law,” the General Government therefore had a secular “political significance under international law”;
³²
it was the “first component” of a new “continental
Grossraum,
” whose era was now approaching and for which the historical models of Rome, the USA, Russia, and the colonial powers were adopted.
³³
Put even more clearly by Governor General Frank, the General Government was the first step toward the “German Global Empire,” a “land of the future.”
³⁴
At the same time, attention was always drawn to the fact that the National Socialist “
Grossraum
order,” like the new structure of the General Government, was a completely new creation, neither a constitutional phenomenon nor one under international law; neither had it found its “final conceptual form.”
³⁵
As usual, when the instruments of legal policy could offer no answer, not jurisprudence but administrative practice was to produce the decisive solution.
³⁶