"Non-Germans" Under the Third Reich (79 page)

The examples that have come to light thus far are the verdict of the Special Court of Cologne dated July 8, 1942, which sentenced a Jewish waiter to death as a “dangerous habitual criminal” on seven counts of “race defilement,” in the sense of section 20a of the Penal Code;
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the verdict of the Special Court of Kassel dated April 20, 1943, which sentenced W. Holländer, a Hungarian Protestant, to death as a “dangerous habitual criminal”
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on seven counts of “race defilement,” resulting in Holländer’s execution on May 30, 1943; and the death sentence imposed by the third Special Court of Berlin against the Jewish defendant Berkheim dated April 9, 1943
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(this sentence resulting from the plea of nullity entered by the Reich chief prosecutor, in response to which the Reich Supreme Court set aside the original sentence of seven years in prison). From Breslau comes the report of the case of the defendant B. Zadik, who was sentenced to death for “race defilement,” grievous bodily injury, and theft.
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From Hamburg two cases are known: that of a defendant sentenced to death as a dangerous habitual criminal solely for several counts of race defilement,
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and that of the inland skipper C., sentenced to death on April 29, 1941 (retroactively), under the violent criminals decree of December 5, 1939, for rape in concurrence with race defilement.
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This murderous justice reached its “high water mark” with the notorious verdict of the Special Court of Nuremberg dated March 13, 1942, against the Jewish defendant Katzenberger, which sentenced him to death under the Blood Protection Law in combination with section 4 of the Decree on Parasites upon the
Volk
of September 5, 1939, because he had committed “race defilement under cover of the black-out,” although not even the objective facts of the case were proved to a reasonable certainty.
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Further special laws were created by the Decree on the Administration of Penal Justice against Poles and Jews (the Decree on Penal Law for Poles) dated December 4, 1941.
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This decree, whose vast generalities and provisions dismantled any guarantees under procedural or substantive law, represented a novelty even by National Socialist standards and constituted an open breach of existing law.
³³
The tone was set by the general clause of item 1, which read:

(1) Poles and Jews in the Annexed Eastern Territories are expected to behave in accord with German law and the directives issued for them by the German authorities. They are to refrain from any actions detrimental to the sovereignty of the German Reich and the good name of the German people….

(2) ….

(3) They are punishable by death, or, in less serious cases, by imprisonment, for expressing anti-German sentiment by means of malicious or seditious activities, in particular for anti-German statements or the removal or defacement of public notices by German authorities or offices, or for disparaging or damaging the good name or the welfare of the German Reich or the German people by any other actions.

(4) [contains definitions of particular offenses]

Since in this wording there is absolutely no indication as to exactly what actions might constitute the offense of “anti-German” activities, the floodgates of unlimited interpretation were now opened. And this legal uncertainty was mirrored in actual practice. Overly harsh sentences stand in stark contrast to attempts to correct draconian punishments retroactively by granting pardons, a practice that was strongly censured by the Reich Ministry of Justice.
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For the dogmatically inclined, the predominant tendency was to entirely remove crimes committed by Poles from the framework of common criminal law and to present them as offenses sui generis, to which the principles of German criminal law were not applicable. The purpose of this was to prevent the application of those principles of criminal law that, under common law, would have worked in favor of the accused, in order to obtain the harshest possible penalties for so-called Polish offenses.
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At the same time, to judge by the verdicts handed down by the Reich Supreme Court, the already limitless general clauses of the decree were meant to be interpreted as broadly as possible. Thus, for instance, the regulation in clause 1, paragraph 2, of the decree, which made “acts of violence” committed against Germans by Poles and Jews “because of their membership in the German race” punishable by death, was interpreted such that an “act of violence,” contrary to general practice, was understood to mean not an act of particular gravity, but rather
any
criminal action “committed by use of force,”
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so that the concept of the act of violence came more and more to resemble simple bodily injury, or indeed even the much less serious crime of intimidation or duress.
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One high point of such innovative legal interpretation was the tendency to punish Poles for behavior that was legally irrelevant according to the German-imposed Polish criminal statutes. Thus, it was generally agreed that sexual intercourse between Germans and Poles, even in cases where no criminal enticement was involved (sec. 176, no. 3, Penal Code), constituted a criminal act analogous to “race defilement,” one that was punishable as “anti-German behavior” where the implicated Polish man was concerned (clause, 1, par. 3, Decree on Penal Law for Poles). The interpretation of this clause took on truly grotesque features in the ruling by certain special courts that sexual intercourse with Germans was “anti-German” because it represented an “attack on the
honor
of German womanhood” and thus was “ an action detrimental to the
sovereignty
of the German Reich and the good name of the German people.”
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The courts generally presumed the existence of such an “attack” even when the sexual intercourse was consensual or indeed even initiated
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by the German woman. Overzealous special courts even imposed the death penalty for sexual intercourse engaged in by “non-Germans” among themselves.
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However, the question whether, in cases of sexual intercourse between German men and “non-German” women, the women should also be punishable, remained unresolved.
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2. Discrimination against “Non-German” Offenders by a Harsher Interpretation of the Regular Law

The creation of special laws notwithstanding, the discrimination against “non-Germans” in penal law came about mainly through a harsher application of general criminal law, for this made it possible to stick to the basic form while nevertheless obeying the tenets of National Socialist thought,
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even when these went against the letter of the law. Discrimination was practiced chiefly in the Special Part of the penal code; the General Part offered few such opportunities.
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The following examples will illustrate how far this tightening up of the law went.

The analogy provision of section 2 of the new version of the Penal Code was often quoted as the legal foundation for discriminatory practice; under its terms acts not normally liable to punishment could be punished when this was required by the “sound thinking of the people.” A considerable number of regulations were used as analogous “criminal statutes”
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to punish acts that otherwise would not carry a penalty, in order to prevent (as the Reich Supreme Court pointed out) “someone who has committed a punishable act from slipping through a loophole in the law or being punished too leniently.”
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The analogy was particularly favored for Poles.
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A telling example is a decision by the Reich Supreme Court, which on the strength of section 4 of the Military Installations Defense Decree of November 25, 1939,
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in conjunction with section 2 of the Penal Code, condemned a Catholic priest who had described prisoners of war as a model of Christianity for incitement to disaffection, although section 4 of said decree spoke only of fraternization with prisoners of war.
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The discrimination against “non-Germans” was also achieved, however, simply by an extensive interpretation of the law—even contradicting its content—as was also commonly practiced against German defendants in order to outlaw undesirable behavior.
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Thus, the regulations on defamation (secs. 185 ff., Penal Code) were not applied in favor of Jews to the same extent as they were in favor of Germans, since “ a Jew…. [could] not enjoy the same protection of his honor as a Reich citizen.”
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Abusive language by Poles against ethnic Germans was punished under section 134a of the Penal Code in the Annexed Eastern Territories, although the text in question spoke only of “abusive language against the Reich.”
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The foreign race of an offender was of course particularly taken into account as a major aggravating factor in the case of sexual offenses.
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The provisions on theft were also interpreted more harshly. In a ruling by the Reich Supreme Court, Polish agricultural workers could not be classified as domestic staff under the terms of section 247, Penal Code, so that the privilege provided for in the law (prosecution only at the suit of the plaintiff) did not apply. Thus, petty theft was punished without any action being brought by the employer.
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The term
domestic staff
, it was claimed, presumed residence with the employer “analogous to that of the family.” This was held not to apply to Poles, who belonged to a people that had “placed itself outside any cultural community and the German
Volksgemeinschaft
.”
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The homicide provisions were also tightened up. In 1940 the Nuremberg Special Court passed the death penalty on a Polish mother who had killed her newborn baby, although section 214 of the Penal Code on infanticide provided only for imprisonment.
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In spite of this tendency toward harsher interpretation, the law also continued to be applied correctly, even when it conflicted with the prevalent racial philosophy. Such judgements were, however, sharply reproved by the ministry (“incomprehensible lenience,” “outrageous mistakes,” etc.), which circulated its disapproval among judges and public prosecutors in the
Richterbriefe
.
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The ministry was particularly incensed by a district court decision sentencing a Jew to two years’ imprisonment and a fine of nine thousand reichsmarks for a currency offense (failure to declare foreign income), since in weighing the mitigating and aggravating circumstances the court had treated him like a German. This was wrong, it was claimed: the Jew was “the enemy of the German people,” a member not only of a different race but of an “inferior race.” It was only fair that the racial viewpoint should not judge different things by the same measure.
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In addition to the broad interpretation of criminal offenses, the tightening-up process in the treatment of “non-Germans” also stretched to sentencing practice. It clearly came naturally to punish offenses committed by non-Aryans more severely than equivalent offenses by Aryans, although opinions differed as to the penalty that should be imposed. This was justified in legal terms by stating that such offenses should always be seen as both severe transgressions against the German
Volksgemeinschaft
(the national community) and a violation of the “laws of hospitality” granted in Germany. This principle was supplemented by the further principle that Aryans should never receive less favorable treatment than non-Aryans in a comparable situation; this was so even when it contradicted the law. Instructive examples are the cases of a Jewish retired professor and an Aryan baker. Both the Jew and the German had touched women’s back-sides with lewd intent in the same store in 1936. Although this was not the Aryan baker’s first offense, the lay assessor’s court of Frankfurt on Main sentenced him to one month’s imprisonment for an outrage upon decency, whereas the Jewish defendant was given a cumulative sentence of ten months for two offenses of assault with intent to insult. The commentary on the judgment expressed the racial hatred built into the judicial practice of the time in exceptionally invective terms:

The defendant is in his 56th year. He is a Jew and was dismissed from state employment in … on October 1, 1933, under the terms of the Law for the Restoration of the Professional Civil Service. His last position was as a teacher at the higher modern school of…. The defendant’s plea states that on the day in question he had a domestic upset, then went into the town on some errands. Among other stores, he visited Woolworth’s on the street
auf der Zeil
in Frankfurt on Main. He claims to have touched the witnesses’ clothing only lightly with his hand, just as one brushes past a garden fence. He states that he had not been in command of himself at the time and had apparently lost his mental capacity. He had not intended to cause offense. This plea by the defendant shows true Jewish deviousness, as taught in the Talmud.
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